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Full Opinion
Beverly IBN-TAMAS, Appellant,
v.
UNITED STATES, Appellee.
District of Columbia Court of Appeals.
*628 William E. McDaniels, Washington, D. C., with whom Ellen S. Huvelle, Washington, D. C., was on brief, for appellant.
David G. Hetzel, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., Washington, D. C., were on brief, for appellee.
Before KELLY, NEBEKER and FERREN, Associate Judges.
FERREN, Associate Judge:
On the morning of February 23, 1976, Dr. Yusef Ibn-Tamas was shot to death in his house, where he maintained his office. His wife of three and one-half years, Beverly Ibn-Tamas (appellant), was charged with second-degree murder while armed, D.C. Code 1973, §§ 22-2403, -3202, and second-degree murder, D.C.Code 1973, § 22-2403. This case first went to trial in September 1976, but after the jury returned a verdict of guilty of second-degree murder while armed, Judge Mencher ordered a new trial.[1] A second jury trial began on July 20, 1977, this time before Judge Stewart. On July 29, 1977, the jury again returned a guilty verdict on the charge of second-degree murder while armed. Subsequently, the court sentenced appellant to prison for a period of one to five years.
Appellant raises six issues on appeal: (1) the trial court's exclusion of expert testimony offered by the defense on the subject of battered women; (2) the prosecution's use, for impeachment purposes, of appellant's testimony at her first trial; (3) the prosecutor's comments to the jury about appellant's consultation with her attorney before interrogation by the police after her arrest; (4) the court's allowing the prosecution to question appellant about her beneficial interest in her husband's life insurance policies; (5) an allegedly prejudicial variance between the prosecutor's description of the case in his opening remarks and the evidence adduced at trial; and (6) the trial court's refusal to instruct the jury as to how appellant's particular physical condition should affect an evaluation of her self-defense claim.
Because we cannot tell from the record whether the trial court properly analyzed the proffer of expert testimony in support of appellant's self-defense theory, we remand the case for further proceedings, as appropriate, and for additional findings and conclusions on that issue. As to all other alleged errors, we affirm.
I. THE FACTS
In order to demonstrate the relevance of the proffered expert, we must provide considerable background information taken from appellant's testimony (Part A infra), as well as the facts directly leading to the shooting incident (Part B infra).
*629 A. Background Testimony
Appellant testified that when she met her husband, Dr. Ibn-Tamas, she was working as a registered nurse in the prenatal care unit at Jacobi Hospital in New York City, where he was a resident in neurosurgery. Shortly after the doctor's divorce from his first wife in September 1972, he married appellant. They located in Miami, Florida, where he was finishing his residency. Appellant continued to work as a private duty nurse until the birth of their daughter the following autumn. In 1974, the family moved to Washington, D. C., where the doctor, assisted by his wife, established a private practice out of an office in their home.
The marriage was marred by recurring violent episodes separated by periods of relative harmony. In 1974, for example, the doctor accused his wife's visiting friend of being a lesbian and abruptly ordered her to leave their apartment. When Mrs. Ibn-Tamas later protested his rudeness, he struck her with his fist, a shoe, and another object, and dragged her and their six-month-old baby off a bed and onto the floor. Several weeks later, during an argument at his mother's house, the doctor allegedly pulled the appellant from her chair onto a cement porch and caused her to lose consciousness by putting his knee to her neck.[2] Days later, he threatened her with a loaded gun when she hesitated over co-signing some financial documents. Shortly thereafter, while they were driving north to Washington to establish their new residence, the doctor and his wife argued over whether she would have to stay at his mother's house while their new home was being prepared. He ended the argument by forcing her out of the car along an interstate highway and driving off with their infant daughter.
Life improved for the Ibn-Tamases temporarily after their move to Washington; but throughout the first two months of 1976 their relationship became increasingly marked by violence. Although Mrs. Ibn-Tamas was several months pregnant with their second child, the doctor on two occasions in January and February punched her in the neck and hit her in the head and face with his fists,[3] leaving her in one instance with a split and bleeding lip. During this period, Dr. Ibn-Tamas also abused appellant verbally, saying that the child she was carrying was not his and threatening her with a fractured skull should she attempt to leave or seek a divorce.
In addition to this first-hand experience, Mrs. Ibn-Tamas claimed at her trial to have been aware, prior to February 23, 1976, of similar violent incidents involving her husband and others.[4] The testimony of Olga Powell indicated that on April 7, 1971, Dr. Ibn-Tamas, then known as Robert Gamble,[5] ordered Ms. Powell out of the apartment that she shared with the doctor and his first wife. When she demurred, the doctor broke down her door, fired a .38 caliber revolver in her direction, and threw her belongings out the window. A criminal complaint for assault with a weapon was later reduced to an administrative fine. The decedent's first wife, Barbara Gamble *630 Carter, testified that on March 23, 1971, she called the police after the doctor had pushed her onto the floor and hit her with a clenched fist during a fight. The doctor left for work just before the police arrived in response to her call.[6] Finally, Marshall Whitley, a relative of the decedent's sister-in-law, testified that on June 29, 1974, the doctor had come to his family home, got into an argument, and pulled a gun on Mr. Whitley and his father. As a result of the incident, Mr. Whitley filed a citizen's complaint against the doctor with the United States Attorney's Office.[7]
B. The Events on the Morning of the Shooting
Appellant testified that on February 23, 1976, she was aware of her husband's past violence toward herself and others, as well as the fact that her husband kept loaded revolvers and shotguns in the house and the adjoining office.[8] That morning, a dispute erupted at the breakfast table. Despite his wife's protests that she was pregnant and that he had promised not to hit her again, Dr. Ibn-Tamas hit appellant over the head, first with a magazine and then with his fists. He then dragged her upstairs, pulled out a suitcase, and told her to pack and get out of the house by 10 a. m. Appellant further testified that when she objected, he hit her with his fists and then with a wooden hairbrush. Trying to protect her abdomen from the attack, appellant turned her body and absorbed the blows on her buttocks and thighs.[9] Dr. Ibn-Tamas then grabbed a .38 caliber revolver, pointed it at his wife's face, and said, "You are going out of here this morning one way or the other."
Thereafter, the doctor went downstairs to his office adjoining the house, and Mrs. Ibn-Tamas remained with her daughter in the bedroom. She called her husband in his office to plead with him to be reasonable, but he told her he did not want to argue anymore and that she should just pack.
Shortly thereafter, the doctor came back into the main part of the house. The events which took place during the next few moments were a matter of sharp controversy at trial. There was conflicting testimony based on the recollections of appellant and of Lynette McCollom, the doctor's secretary, who had just arrived at work and overheard the shooting from the adjoining office area.
Appellant testified that the doctor returned to the bedroom and resumed the attack. She was pushed toward the bureau on top of which her husband had left the gun that he had threatened her with moments earlier. Thinking that he was going to grab the gun, she picked it up, begged him to leave her alone, and fired the gun toward the bottom of the door to scare him. The doctor then left the room; and, according to appellant, she took her daughter in hand and started toward the stairway leading down to the first floor and the door. As she reached the top of the front stairway, however, her husband allegedly jumped out from behind the wall at the landing. Appellant fired twice more. Although it was not immediately apparent to appellant, one of these two shots struck the doctor in the abdomen. There was no immediate external bleeding; and the doctor remained standing as he backed down the stairs and into an examination room connected to the house by a swinging door at the bottom of the stairs. Appellant proceeded down the steps. As she reached the bottom landing, however, her daughter jumped out in front of her, looked into the *631 examination room, and called out "Daddy." When appellant glanced through the open door, she saw her husband crouching with what she thought was a gun in his hand.[10] She fired again, striking the doctor in the head with what proved to be the fatal blow.
Ms. McCollom testified that she arrived for work at approximately 9:00 a. m. The doctor let her in as he was passing through the office to return upstairs. Although Ms. McCollom did not see what occurred between appellant and her husband, she testified that she heard a shot approximately three seconds after she had seen Dr. Ibn-Tamas pass through the door from the examination room into the house. The shot sounded as if it had come from the landing. Ms. McCollom then heard a thumping noise, as if someone were falling down the stairs, followed by the words, "Yasmine,[[11]] don't shoot me anymore," and the second shot. As Ms. McCollom backed out of the office toward the door, she heard the doctor call her name. As she reached the office door leading to the street, she heard appellant say, "I am not going to leave you, I mean it" and then she heard a third and final shot.[12]
Principally on the basis of Ms. McCollom's testimony, the prosecution suggested in its closing argument that Mrs. Ibn-Tamas, threatened with the prospect of being thrown out of her home in what she still considered a strange city, had simply decided that she had endured enough of her husband's abuse; lured him back into the house with a telephone call; ambushed him on the stairs; and followed him downstairs, shooting him in the forehead at point blank range as he lay on the examination room floor from the previous shot. Through questioning, the prosecution further suggested that appellant stood to gain financially from her husband's death, and accused her of being jealous of the other women he told her he had dated during the last few weeks before the shooting.
II. EXPERT TESTIMONY ABOUT "BATTERED WOMEN"
Appellant claims the trial court erred in excluding the testimony of Dr. Lenore Walker, a clinical psychologist, proffered as a defense expert on the subject of "battered women." Specifically, the defense proffered Dr. Walker for two purposes: to describe the phenomenon of "wife battering," and to give her opinion of the extent to which appellant's personality and behavior corresponded to those of 110 battered women Dr. Walker had studied. The defense claimed the testimony was relevant because it would help the jury appraise the credibility of appellant's contention that she had perceived herself in such imminent danger from her husband that she shot him in self-defense.
The trial court refused to permit this expert testimony on three grounds. First, it would "go [] beyond those [prior violent] acts which a jury is entitled to hear about, sift, and try to understand the circumstances under which they arose, and draw conclusions therefrom." Second, it would "invade[] the province of the jury, who are the sole judges of the facts and triers of the credibility of the witnesses, including the defendant." Third, Dr. Walker, "of necessity, concludes that the decedent was a batterer. And that is not being tried in this case. It is the defendant who is on trial."
*632 Our "scope of review on this issue is narrow, for the `trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action is to be sustained unless manifestly erroneous.'" Douglas v. United States, D.C.App., 386 A.2d 289, 295 (1978), (quoting Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962)). In exercising its discretion, the trial court must be guided by the principles that "the `defense should be free to introduce appropriate expert testimony,'" Fennekohl v. United States, D.C.App., 354 A.2d 238, 240 (1976) (quoting Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973)), and that such evidence should be admitted if "the opinion offered will be likely to aid the trier in the search for truth." Jenkins v. United States, 113 U.S.App.D.C. 300, 306, 307 F.2d 637, 643 (1962). At the same time, because expert or scientific testimony possesses an "aura of special reliability and trustworthiness," United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir. 1973), the proffer of such testimony must be carefully scrutinized.
Over the years, appellate courts have applied two levels of analysis to a trial court's ruling on expert testimony. First, there is the question of admissibility, for which a three-fold test is applied. See Dyas v. United States, D.C.App., 376 A.2d 827, 832, cert. denied, 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). Second, the probative value of the testimony must outweigh its prejudicial impact. See United States v. Green, 548 F.2d 1261, 1267 (6th Cir. 1977); Amaral, supra.
A. Admissibility
Of the three grounds given by the trial court for excluding Dr. Walker's testimony, only the second (it would "invade[] the province of the jury . . .") goes to admissibility. There are two ways in which an expert can preempt the jury's function. The expert either can speak too directly to the ultimate issue (i. e., guilt or innocence), see United States v. Spaulding, 293 U.S. 498, 506, 55 S.Ct. 273, 79 L.Ed. 617 (1935); Lampkins v. United States, D.C.App., 401 A.2d 966, 970 (1979); Washington v. United States, 129 U.S.App.D.C. 29, 40-41, 390 F.2d 444, 455-56 (1967), or can speak to matters in which "the jury is just as competent as the expert to consider and weigh the evidence and draw the necessary conclusions," Lampkins, supra at 969 (i. e., the matter is "`not beyond the ken of the average layman,'" id.; Dyas, supra at 832).
1. Here, the expert would not preempt in either fashion. As to the first the "ultimate facts" or "ultimate issue" rule Dr. Walker was not going to express an opinion on the ultimate question whether Mrs. Ibn-Tamas actually and reasonably believed she was in danger when she shot her husband. Rather, this expert would have merely supplied background data to help the jury make that crucial determination. See United States v. Hearst, 412 F.Supp. 889 (N.D. Cal.1976) (Hearst I). In any event, the ultimate issue rule has, over time, been reduced to a prohibition only against questions to an expert "which, in effect, submit the whole case to an expert witness for decision." Id.[13] There is no such risk here.
2. Even when an expert is not speaking to the ultimate facts or issue, he or she cannot testify to matters which "the jury itself is just as competent" to consider. Lampkins, supra at 969. In order to evaluate this concern, we have adopted a three-fold test for admissibility:
(1) the subject matter "must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman"; (2) *633 "the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth"; and (3) expert testimony is inadmissible if "the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert." [Dyas v. United States, supra at 832 (quoting McCormick on Evidence § 13 (2d ed. E. Cleary 1972)) (emphasis omitted).]
See Waggaman v. Forstmann, D.C.App., 217 A.2d 310, 311 (1966). Thus, the subject of the testimony must lend itself to expertise, the proffered expert must be qualified to give it, and experts must have studied the subject in a manner that will justify an expert opinion.
The substantive element of this test, whether the expert witness' subject matter is "beyond the ken of the average layman," means that Dr. Walker's testimony, to be admissible, must provide a relevant insight which the jury otherwise could not gain in evaluating appellant's self-defense testimony about her relationship with her husband. More specifically, Dr. Walker must purport to shed light on a relevant aspect of their relationship which a layperson, without expert assistance, would not perceive from the evidence itself.
On direct examination, Mrs. Ibn-Tamas had testified that immediately before the shooting Dr. Ibn-Tamas had told her to pack and leave home by 10:00 a. m. When she replied that she could not, he hit her in the head, under the arms, and in the thighs, and kicked her in the stomach even though she was pregnant. She continued:
I saw he was looking over there on the bureau, so I saw the pistol, and he looked like he was going to go for the pistol. I just picked it up. I shot the bottom of the door, and I said, "Just please get out of here, and please, please leave us alone."
(The witness is crying.)
And then he was backing out of the door, and he said, "You are going now." And he just kept looking at me. And I heard him go down the steps, and so I had my little girl's hand. I knew after I shot that shot I had to get out of the house. I just knew he was going to kill me. So I had my little girl in my hand and we started to go down the steps real fast, and we got to the top and he jumps back from the landing. I thought he had gone all the way down, and so I took my leg back, pulled my little girl back, and we were next to the wall, and I just shot the gun.
He backed up against the wall, (indicating) went back to the wall, and he kept down at the steps with his eyes still on my face, and he went down the stairs, jumping two at a time, doing like that, and he kept looking back with his back to the wall, and on the way down the steps he said, "I am going to kill you, you dirty bitch."
He got at the bottom of the steps and he looked at me and he just went in the office, and I knew I had to get out of that door.
(The witness is crying.)
I knew it. And I had my little girl by the hand. She seemed like when he got to the bottom of the steps, she thought we were supposed to follow him. She jumped like she was going in front, and she looks and she says, "Daddy." And I looked in there and he was, he was just like he was waiting for me. He was standing over just like something like that. (Indicating.) And I just knew he had a gun. I shot in the room, and I turned to go out the front door, and after I turned my head I heard him fall. I heard him fall, and I knew I had shot him.
On cross-examination the government attempted to discredit this testimony by suggesting to the jury, through its questions, that Mrs. Ibn-Tamas' account of the relationship with her husband over the years had been greatly overdrawn, and that her testimony about perceiving herself in imminent danger on February 23, was therefore implausible. For example, the government implied to the jury that the logical reaction *634 of a woman who was truly frightened by her husband (let alone regularly brutalized by him) would have been to call the police from time to time or to leave him.[14] In an effort to rebut this line of attack by the government, the defense proffered Dr. Walker's testimony to (1) inform the jury that there is an identifiable class of persons who can be characterized as "battered women," (2) explain why the mentality and behavior of such women are at variance with the ordinary lay perception of how someone would be likely to react to a spouse who is a batterer, and thus (3) provide a basis from which the jury could understand why Mrs. Ibn-Tamas perceived herself in imminent danger at the time of the shooting.
More specifically, Dr. Walker told the trial court, out of the presence of the jury, that she had studied 110 women who had been beaten by their husbands. Her studies revealed three consecutive phases in the relationships: "tension building," when there are small incidents of battering; "acute battering incident," when beatings are severe; and "loving-contrite," when the husband becomes very sorry and caring. Dr. Walker then testified that women in this situation typically are low in self-esteem, feel powerless, and have few close friends, since their husbands commonly "accuse[] them of all kinds of things with friends, and they are embarrassed. They don't want to cause their friends problems, too." Because there are periods of harmony, battered women tend to believe their husbands are basically loving, caring men; the women assume that they, themselves, are somehow responsible for their husbands' violent behavior. They also believe, however, that their husbands are capable of killing them, and they feel there is no escape. Unless a shelter is available, these women stay with their husbands, not only because they typically lack a means of self-support but also because they fear that if they leave they will be found and hurt even more. Dr. Walker stressed that wife batterers come from all racial, social and economic, groups (including professionals), and that batterers commonly "escalate their abusiveness" when their wives are pregnant. She added that battered women are very reluctant to tell anyone that their husbands beat them. Of those studied, 60% had never done so before (Dr. Walker typically found them in hospitals), 40% had told a friend, and only 10% had called the police.
When asked about appellant, whom she had interviewed, Dr. Walker replied that Mrs. Ibn-Tamas was a "classic case" of the battered wife. Dr. Walker added her belief that on the day of the killing, when Dr. Ibn-Tamas had been beating his wife despite protests that she was pregnant, Mrs. Ibn-Tamas' pregnancy had had a "major impact on the situation. . . . [T]hat is a particularly crucial time."
Dr. Walker's testimony, therefore, arguably would have served at least two basic functions: (1) it would have enhanced Mrs. Ibn-Tamas' general credibility in responding to cross-examination designed to show that her testimony about the relationship with her husband was implausible; and (2) it would have supported her testimony that on the day of the shooting her husband's actions had provoked a state of fear which led her to believe she was in imminent danger ("I just knew he was going to kill me"), and thus responded in self-defense. Dr. Walker's contribution, accordingly, would have been akin to the psychiatric testimony admitted in the case of Patricia Hearst "to explain the effects kidnapping, prolonged incarceration, and psychological and physical abuse may have had on the defendant's mental state at the time of the robbery, insofar as such mental state is relevant to the asserted defense of coercion or duress." Hearst I, supra at 890. Dr. Walker's testimony would have supplied an *635 interpretation of the facts which differed from the ordinary lay perception ("she could have gotten out, you know") advocated by the government. The substantive element of the Dyas, supra, test "beyond the ken of the average layman" is accordingly met here.
We conclude, therefore, that as to either substantive basis for ruling that Dr. Walker's testimony would "invade[] the province of the jury" either the "ultimate issue" or the "beyond the ken" basis the trial court erred as a matter of law.
3. Because Dyas, supra, provides a three-fold test, we must consider, next, whether the trial court can be said to have ruled, implicitly, that the expert testimony was inadmissible for failure to meet either the second or third elements of that test.
By way of background, we note that although a trial court's ruling to exclude expert testimony is reversible only for abuse of discretion for being "manifestly erroneous," Douglas, supra at 295 there is an important tradeoff for giving the trial court such latitude: that court must take no shortcuts; it must exercise its discretion with reference to all the necessary criteria. Johnson v. United States, D.C.App., 398 A.2d 354, 363-67 (1979). Otherwise, the very reason for such deference i. e., the trial court's opportunity to observe, hear, and otherwise evaluate the witness will be compromised. Thus, the appellate court must not affirm a ruling premised on trial court discretion unless the record clearly manifests either (1) that the trial court has ruled on each essential criterion, or (2) that the trial court, as a matter of law, had "but one option." Id. at 364.
We therefore confront the question whether the record clearly manifests a trial court ruling that Dr. Walker did not have "sufficient skill, knowledge, or experience" in the field (second Dyas criterion), or that "the state of the pertinent art or scientific knowledge" was insufficient for an expert opinion (third Dyas criterion).
Dr. Walker testified as to her credentials, her study of battered women, and her diagnosis of Mrs. Ibn-Tamas. The court then inquired whether Dr. Walker was offering a "medical diagnosis" and asked several questions about the 110 women she had interviewed. After reviewing the record, we cannot say that the trial court's ruling was meant to encompass the second or third Dyas criterion. We are mindful that in scrutinizing the trial court's ruling for abuse of discretion, the reviewing court "may examine the record and infer the reasoning upon which the trial court made its determination," Johnson, supra, at 366; but it would stretch the record too far to conclude that the trial court, in ruling that Dr. Walker's testimony would "invade the province of the jury," implied additional findings that Dr. Walker's credentials are unworthy or her study unreliable.
4. The question thus becomes whether the trial court, despite its failure to rule on the second or third Dyas criterion, had "but one option," Johnson, supra at 364 i. e., whether Dr. Walker's testimony is inadmissible as a matter of law. This question is derived from a "settled rule":
[I]n reviewing the decision of a lower court, it must be affirmed if the result is correct "although the lower court relied upon a wrong ground or gave a wrong reason." Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 158, 82 L.Ed. 224. The reason for this rule is obvious. It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate. [Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943).]
Accord, Duddles v. United States, D.C.App., 399 A.2d 59, 64 (1979) ("this court can affirm the denial of a motion to suppress if, for any reason, the ruling is correct"); Simpkins v. Brooks, D.C.Mun.App., 49 A.2d 549, 552 (1946) (decision "must be affirmed if the result was correct although the trial court relied upon a wrong ground or gave a *636 wrong reason").[15] The Chenery rule, therefore, permits the appellate court to affirm a trial court ruling when the court gave a wrong reason or gave no reason at all[16] if the ruling is "correct." For example, the appellate court can affirm, despite the trial court's erroneous reasoning, by applying an alternate legal ground to undisputed facts, e. g., Duddles, supra; Simpkins, supra, or can affirm when the trial court gives no reasons as long as there is conclusive evidentiary support for the applicable legal rule, e. g., Harper v. Wyatt, D.C.App., 281 A.2d 442 (1971); Karath v. Generalis, D.C.App., 277 A.2d 650 (1971). See notes 15 and 16 supra. In either situation, the appellate court is using its traditional power, as final arbiter, to apply the law to the facts, and is holding that the decision is correct as a matter of law in the sense that the trial court, properly instructed, inevitably would reach the same result. In such cases, the appellate court avoids the waste of judicial resources that would result from a remand to the trial court for a mere rewrite of the decision.[17]
In the present case, therefore, the question is whether the trial court was "correct" in ruling Dr. Walker's testimony inadmissible because even assuming that the trial court considered only the first Dyas criterion we can say, on this record, that the defense proffer necessarily failed to meet either the second or third Dyas criterion. We turn to that inquiry.
5. The most we can say from this record is that the second Dyas criterion sufficient skill, knowledge, or experience in the expert's *637 field may or may not have been satisfied. Although no one has questioned Dr. Walker's qualifications as a clinical psychologist,[18] the expert's credentials must be sufficient for the type of psychological testimony proffered.
The defense proffered Dr. Walker not only to give the jury a description of the phenomenon called "wife battering" but also, more specifically, to compare appellant with the battered women Dr. Walker had identified and studied. In Jenkins, supra, the federal circuit court in this jurisdiction addressed the question whether experts without medical training in that case, three defense psychologists were qualified to diagnose the presence of a specific mental illness. The court concluded that although the defense experts' lack of medical training left them unqualified to treat any pathology, these psychologists were not necessarily lacking in the expertise required to suggest "the diagnostic category into which an accused's condition fits, and relat[e] it to his past behavior. . . ." Id. 113 U.S. App.D.C. at 307, 307 F.2d at 644. The court emphasized that, in fact, "[t]he kinds of witnesses whose opinions courts have received, even though they lacked medical training and would not be permitted by law to treat the conditions described, are legion." Id. (Emphasis omitted).[19]
On this record, we cannot resolve the question of Dr. Walker's qualifications; but we can say on the basis of her background, see note 18 supra, coupled with Jenkins, supra, that she cannot be disqualified as a matter of law.[20]
6. We turn, finally, to the third Dyas criterion: whether "the state of the pertinent art or scientific knowledge" is sufficient to permit an expert opinion. The government argues that the "battered woman" concept is not sufficiently developed, as a matter of commonly accepted scientific knowledge, to warrant testimony under the guise of expertise. The government relies substantially on Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1910):
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. [Id. at 47, 293 F. at 1014 (emphasis added).]
The government is mistaken. First, as discussed earlier, the relevant expert diagnosis is not limited here to medical diagnosis; the "particular field" in which Dr. Walker's testimony belongs," id., is broad enough to include clinical psychology. See *638 Jenkins, supra. Next, it is important to note that the third criterion focuses on the general acceptance of a particular methodology in the field, not (as the government would have it) on the subject matter studied. The United States Court of Appeals for the District of Columbia Circuit recently emphasized that Frye, supra which rejected admissibility of lie detector results dealt with "admissibility of expert testimony based on new methods of scientific measurement." United States v. Addison, 162 U.S.App.D.C. 199, 201, 498 F.2d 741, 743 (1974). Thus, the third criterion is directed to the general acceptance of generic categories of scientific inquiry, such as use of the polygraph, spectrographic identification, psycholinguistics, tests for marijuana, and even neutron activation analysis, as well as the variety of analyses used by psychiatrists and clinical psychologists.[21]
It is true that the state of scientific knowledge itself can be so meager in a particular field of study that courts will preclude reliance on expert testimony about it, see, e. g., Tonkovich v. Dept. of Labor & Industries, 31 Wash.2d 220, 195 P.2d 638 (1948) (court took judicial notice that cause of cancer is unknown and ignored expert testimony that plaintiff's cancer resulted from on-the-job injury); but such instances merely reflect the court's conclusion that no reliable methodology for making the inquiry has been discovered; the proffer did not meet a threshold test of believability. Basically, therefore, the third test deals with the "state of the art" of inquiry, not with the quantity of substantive knowledge. See Douglas, supra, at 296; United States v. Hearst (Hearst II), 412 F.Supp. 893, (N.D.Cal.1976), aff'd, 563 F.2d 1331 (9th Cir. 1977).[22]
In summary, satisfaction of the third Dyas criterion begins and ends with a determination of whether there is general acceptance of a particular scientific methodology, not an acceptance, beyond that, of pa