What is the current state of the law in the 9th Circuit when it comes to admitting or denying evidence of domestic violence?

The majority says that we should stick with United States v. Pitts, 6 F.3d 1366 (9th Cir.1993), but has the rule in Pitts wrong. We did not hold in that case that any evidence had to be admitted. We held that a trial judge's decision to admit it was not an abuse of discretion. "We review the district court's decisions balancing probative value against prejudicial effect for abuse of discretion." Pitts at 1371. The judge in that case, like the judge in this one, sensibly could have kept the evidence out or let it in. The rule is the same for the prosecution and the defense, that a trial judge who makes a discretionary judgment for a sensible reason has the last word on the subject.

Exclusion in the case at bar is like the exclusion we approved in United States v. Comerford, 857 F.2d 1323 (9th Cir.1988). There, a victim had previously been arrested for hitting his wife, and we affirmed the trial judge's decision to keep the domestic violence evidence out in an assault trial involving unrelated males. There is also a parallel to Cohn v. Papke, 655 F.2d 191 (9th Cir.1981). A man who had been arrested for soliciting sex from male police officers brought a civil rights suit for police brutality. We held that the trial judge had abused his discretion by admitting the defendants' evidence that the man was homosexual, because the man's sexuality was of limited relevance, and the relevance was outweighed by the risk of unfair prejudice. These decisions--Pitts, Comerford, and Cohn--represent the established law of our circuit, and today's decision deviates.