Emotionality in domestic violence evidence-in- chief: towards unbiased and rational legal fact- finding

Abstract

Domestic Violence Evidence-in-Chief represents a significant shift in evidentiary practice in Domestic and Family Violence cases. These pre-recorded statements, typically captured shortly after an incident, offer an immediate and seemingly authentic account of events. However, concerns have been raised about the potential introduction of extra-legal influences through elements visible or audible in the recordings. One such element is emotionality, as complainants’ emotional displays in the footage may impact fact- finders’ credibility assessments and legal decision-making. Research on the Emotional Victim Effect suggests that visibly distressed victims of sexual assault tend to be perceived as more credible than emotionally neutral ones. However, there is limited understanding of whether this effect also applies to Domestic Violence Evidence-in-Chief. Moreover, it has been established through experimental research in other contexts that jurors’ own emotional states influence how they evaluate evidence and make judgements. This article highlights the risk of emotional bias in pre-recorded evidence and calls for further empirical investigation. The aim is to inform the development of evidence- based practices to promote rational fact-finding in Domestic and Family Violence prosecutions.