Friday, February 15, 2013

Court says jury should not hear of accuser's prior false rape claim

In Scotland, a 50-year-old man claimed he was denied a fair trial in 2011 when he was convicted sex offences and jailed for six years. One his purported victims had made a false rape complaint to police several years before the trial against another man. She admitted fabricating much of the story and she was charged with wasting police time. Lawyers for the accused wanted the jury at his trial to hear of the allegation.They argued that the “fictional” allegation would have been capable of demonstrating to the jury that the woman was predisposed to telling lies of a sexual nature. The trial judge ruled it was “collateral” and inadmissible evidence.

On appeal, campaigners for women’s rights saw this as a test case: they don't think women's characters should be attacked even in he said/she said rape cases. The appeals court sided with the women's group: it is proper, somehow, that the jury not hear that a false accuser might be a serial false accuser. See here.

In a he said/she said rape case where there is no physical evidence and the entire matter comes down to a credibility contest, it is difficult to fathom how a woman's character on the issue of her propensity to lie about rape could not be highly relevant. What could be more relevant?  Is the jury limited to judging credibility by assessing her demeanor? Her ability to appear vulnerable? To cry? Her acting skills? The fact that she is petite and the accused is a brutish-looking male? (In the now-infamous Brian Banks case, Brian was facing 41 years to life if convicted of a rape he didn't commit. His lawyer worked out a plea deal and strongly urged him to take it because, she said, if he went to trial, it would be her word against his, and he would lose. Why?  "If [you] go into that courtroom," Brian remembers her telling him, "the jury [is] automatically going to see a big, black teenager and automatically assume [you are] guilty.")

Many American courts provide greater protections for the presumptively innocent when it comes to the accuser's history of making demonstrably false rape claims. Many courts have held that admission of evidence of prior similar charges by the prosecuting witnesses is not barred by the rape shield statutes where the evidence was offered for impeachment purposes and was relevant to the cases at bar. The more the case hinges on the accuser's credibility, the more likely is the admission of the prior rape claim. The rape shield laws are not intended to shield liars, and rape is not the sort of unchaste conduct these laws were intended to keep out of trials. Some of the cases are referenced in *NOTE below.

*NOTE: Some of the cases are collected at 71 A.L.R.4th 469 -- here is a summary:

A defendant charged with sexual assault must establish by a preponderance of the evidence that a complaining witness's prior accusations of sexual assault were knowingly false before such evidence is admissible. Morgan v. State, 54 P.3d 332 (Alaska Ct. App. 2002).

Although a false accusation of sexual misconduct against another person by the alleged rape victim is an exception to ban of evidence on victim's past sexual behavior, under the rape shield statute, the court has considerable discretion in determining whether the probative value of the evidence is substantially outweighed by its unfairly prejudicial effect. A.R.S. § 13-1421, subd. A, par. 5. State v. Gilfillan, 196 Ariz. 396, 998 P.2d 1069 (Ct. App. Div. 1 2000).

See Smith v State (1989) 259 Ga 135, 377 SE2d 158, cert den (US) 107 L Ed 2d 53, 110 S Ct 88, § 6[a].

Evidence that complaining witness made prior false allegations of sexual misconduct by persons other than defendant is admissible under the rape shield law to attack the credibility of the witness and as substantive evidence tending to prove that the charged offense did not occur; however, to protect the witness from unfounded allegations that the witness has made similar false allegations in the past, before such evidence can be admitted, the trial court is required to make a threshold determination outside the jury's presence that a reasonable probability of falsity exists. West's Ga.Code Ann. § 24-2-3. Osborne v. State, 662 S.E.2d 792 (Ga. Ct. App. 2008).

Evidence of the victim's prior false accusations of sexual misconduct are admissible to attack her credibility and to prove that the charged offense did not occur; before such evidence may be admitted, however, the defendant must prove to the trial court's satisfaction, outside the presence of the jury, that a reasonable probability of falsity exists. Birkbeck v. State, 292 Ga. App. 424, 665 S.E.2d 354 (2008).

Rape shield law does not prohibit testimony regarding the victim's prior false accusations of sexual misconduct. West's Ga.Code Ann. § 24-2-3. Roberts v. State, 648 S.E.2d 783 (Ga. Ct. App. 2007).

Evidence of false allegations of sexual abuse may be admissible to attack the credibility of a witness. Long v. State, 595 S.E.2d 93 (Ga. Ct. App. 2004), cert. denied, (May 24, 2004).

Evidence of prior false accusations by a rape victim does not fall within the proscription of the rape shield law, but be-fore admitting such evidence the trial court must determine outside the presence of the jury that a reasonable probability exists that such accusations were false. O.C.G.A. § 24-2-3. Wagner v. State, 560 S.E.2d 754 (Ga. Ct. App. 2002).

Evidence of prior false accusations of sexual misconduct made by the prosecutrix is admissible to attack the credibility of the prosecutrix and as substantive evidence tending to prove that the instant offense did not occur. Mills v. State, 251 Ga. App. 39, 553 S.E.2d 353 (2001).

Before admitting evidence of prior false allegations by sexual assault victim, trial court must determine, outside pres-ence of jury, that reasonable probability of falsity exists. Gravitt v. State, 228 Ga. App. 760, 492 S.E.2d 739 (1997).

Trial court abused discretion in determining that there was no reasonable probability that prosecutrix had made prior false allegations where defendant offered testimony that prosecutrix told friends that she had been raped before and presented testimony of an independent third party that prior accusation was false and prosecutrix admitted prior accusation although she did not say it was false. Ellison v State (1990) 198 Ga App 75, 500 SE2d 360.

False allegations by complainant of unrelated sexual assaults are not excluded by the rape shield statute in sex offense prosecution. Rules of Evid., Rule 412. State v. West, 95 Haw. 452, 24 P.3d 648 (Haw. 2001).

Testimony of two witnesses attesting to complaining witness' having made prior false accusations of rape was sufficient to permit conclusion that accusations had in fact been made, and such testimony was therefore admissible to impeach complaining witness, who testified that she had made no such accusations. Rules of Evid, Rule 412. State v. Walton, 715 N.E.2d 824 (Ind. 1999).

Common law exception, to rule which prohibits admission of evidence of any prior sexual conduct of an alleged victim of a sex crime, exists for situations where the victim has admitted the falsity of a prior accusation of rape or where a prior accusation is demonstrably false. Rules of Evid., Rule 412. Conrad v. State, 938 N.E.2d 852 (Ind. Ct. App. 2010).

Common law exception to the Rape Shield Rule provides that evidence of a prior accusation of rape is admissible if: (1) the victim has admitted that his or her prior accusation of rape is false; or (2) the victim's prior accusation is demonstrably false. Rules of Evid., Rule 412. State v. Luna, 932 N.E.2d 210 (Ind. Ct. App. 2010).

As a common-law exception to the rape-shield rule, evidence of a prior accusation of rape is admissible if (1) the victim has admitted that his or her prior accusation of rape is false or (2) the victim's prior accusation is demonstrably false. Rules of Evid., Rule 412(a). Oatts v. State, 899 N.E.2d 714 (Ind. Ct. App. 2009).

Evidence of a victim's or witness's prior false accusations of rape may be admitted in a trial for sex offenses, but only if (1) the complaining witness admits he or she made a prior false accusation of rape; or (2) the accusation is demonstrably false. West's A.I.C. 35-37-4-4; Rules of Evid., Rule 412. Fugett v. State, 812 N.E.2d 846 (Ind. Ct. App. 2004).

Evidence of alleged rape victim's prior accusation of rape is admissible if: (1) the victim has admitted that her prior accusation of rape is false; or (2) the victim's prior accusation is demonstrably false. Sallee v. State, 785 N.E.2d 645 (Ind. Ct. App. 2003).

In order for evidence of the victim's prior false claims of sexual abuse to be admitted into evidence, the defendant must first make a threshold showing to the court that (1) the complaining witness made the statements and (2) the statements are false, based on a preponderance of the evidence; if the prior claims are determined to be false, the rape-shield law is inapplicable, and the claims are admissible if they meet all other applicable evidentiary requirements and considerations. I.C.A. Rule 5.412(b). Millam v. State, 745 N.W.2d 719 (Iowa 2008).

Even if the alleged victim's prior allegation of sexual impropriety against another is demonstrably false and thus not barred by rape shield law, the evidence is still subject to other evidence rules, including rule governing admission of character evidence and rule governing balancing of probative value against danger of undue prejudice, and may be limited or excluded as those rules require, consistent, of course, with constitutional restraints. Rules of Evid., Rules 403, 412, 608. Dennis v. Com., 306 S.W.3d 466 (Ky. 2010).

In sexual-offense cases involving a defense claim of fabrication, evidence of unrelated accusations made by the victim is admissible under the rape-shield law only if the accusations are demonstrably false and the probative value of the evidence outweighs its prejudicial effect. Rules of Evid., Rules 403, 412. Capshaw v. Com., 253 S.W.3d 557 (Ky. Ct. App. 2007), review denied, (June 11, 2008).

Statute providing that, when an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim's past sexual behavior is not admissible except under certain limited circumstances is inapplicable in sexual assault cases where the defendant seeks to question witnesses regarding the victim's prior false allegations concerning sexual behavior for impeachment purposes. LSA-C.E. art. 412. State v. Dixon, 982 So. 2d 146 (La. Ct. App. 5th Cir. 2008).

Two requirements exist before evidence of victim's prior sexual activity can be admitted for impeachment purposes in rape prosecution where victim has made prior false accusations regarding sexual activity: first, the activity must be of a sexual nature, and second, there must be evidence that the statement is false. LSA-C.E. art. 412. State v. Freeman, 970 So. 2d 621 (La. Ct. App. 1st Cir. 2007).

Under Massachusetts law, evidence that the alleged victim has made prior false allegations of rape may be admissible in a rape case when the central issue is whether the alleged victim consented to the acts and the alleged victim is the only witness on the issue of consent. Tibbs v. Allen, 486 F. Supp. 2d 188 (D. Mass. 2007) (applying Massachusetts law).

A complainant's previous false allegations of sexual assault may in certain cases be admissible when the veracity of a complainant's later allegation of sexual assault is questioned. Com. v. Reed, 444 Mass. 803, 831 N.E.2d 901 (2005).

Under rape-shield statute, evidence of complainant's past sexual conduct with others may be admissible for narrow purpose of showing complainant's bias or ulterior motive for making false charge, or showing that complainant has made false accusations of rape in past. U.S.C.A. Const. Amend. 6; M.C.L.A. § 750.520j(1). Parker v. Board of Educ. of Byron Center Public Schools, 229 Mich. App. 565, 582 N.W.2d 859, 128 Ed. Law Rep. 878 (1998).

There are two separate theories in allowing extrinsic evidence of prior false accusations for impeachment purposes: one such theory is that, in certain circumstances, evidence of prior accusations is indicative of bias and a motive to fabricate the current charge; and another theory under which prior accusations may be admitted is that prior false accusations reflect poorly on the witness's general veracity with respect to charges before the court. State v. J.L.S., 259 S.W.3d 39 (Mo. Ct. App. W.D. 2008), reh'g and/or transfer denied, (May 27, 2008) and transfer denied, (Aug. 26, 2008).

In prosecution for sexual assault, prior false accusations of sexual abuse or sexual assault by complaining witnesses did not constitute "previous sexual conduct" for rape shield purposes, and defendant was entitled to prove complaining witness' past false accusations for impeachment purposes after establishing outside presence of jury and upon noticed motion that (1) accusations were made, (2) accusations were in fact false, and (3) evidence was more probative than prejudicial; however, defendant's vague references to attorney general's motivation for not going forward with complaining witness' prior sexual abuse allegations against her uncle were insufficient to establish that prior allegations were in fact false. Miller v State (1989, Nev) 779 P2d 87.

In determining admissibility of evidence that a victim-witness has made a prior false criminal accusation, courts should consider the following factors: (1) whether the credibility of the victim-witness is the central issue in the case; (2) the similarity of the prior false criminal accusation to the crime charged; (3) the proximity of the prior false accusation to the allegation that is the basis of the crime charged; (4) the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and (5) whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time. N.J.S.A. 2A:84A, App. A, Rules of Evid., Rule 608. State v. Guenther, 181 N.J. 129, 854 A.2d 308 (2004).

Prior complaints of sexual abuse may be admissible if the defense proves that the complaints were false and of suffi-cient similarity to the charged crime to suggest a pattern of false complaints. People v. Lackey, 48 A.D.3d 982, 853 N.Y.S.2d 668 (3d Dep't 2008).

Trial court in rape prosecution erred in dealing with defense attempt to show that complainant had made prior false accusations of rape, where court sustained pre-answer objection to defense cross-examination as to prior accusations and thus never determined whether complainant had made demonstrably false prior charges, evidence of which (restricted to complainant's own admissions) would be admissible as impeachment, since rape shield statute does not protect prior false accusations made without reference to concurrent shield-protected sexual activity. State v Boggs (1992) 63 Ohio St 3d 418, 588 NE2d 813.

When an alleged rape victim admits on cross-examination that she has made a prior false rape accusation, the trial judge must conduct an in camera hearing to ascertain whether sexual activity was involved; if sexual activity was involved, then the testimony is inadmissible, or shielded under rape shield statute, but if the trial judge finds that there was a false accusation and that there was no sexual activity involved, then this evidence does not fall within rape-shield statute. R.C. § 2907.02(D). State v. Netherland, 132 Ohio App. 3d 252, 724 N.E.2d 1182 (1st Dist. Hamilton County 1999), dismissed, appeal not allowed, 85 Ohio St. 3d 1496, 710 N.E.2d 716 (1999).

Defendant's conviction of rape was reversed and cause remanded to determine whether prosecuting witness made prior rape accusations and, if so, whether charges were false and "unfounded" as not involving sexual activity. If unfounded, defendant would be allowed to cross-examine witness on issue before jury at new trial; if accusations were not unfounded, then cross-examination would be precluded by rape shield statute, and judgment would be reinstated. State v Boggs (1993, Adams Co) 89 Ohio App 3d 206, 624 NE2d 204, dismd, motion overr 67 Ohio St 3d 1510, 622 NE2d 657.

Prior false reports of crime are relevant to a witness's credibility. State v. Wyrick, 62 S.W.3d 751 (Tenn. Crim. App. 2001), appeal denied, (July 12, 2001).

Rape shield statute does not exclude evidence of alleged rape victim's previous false allegations of rape. Rules of Evid., Rule 412. State v. Martin, 1999 UT 72, 984 P.2d 975 (Utah 1999).

Although rule that prohibits the admission of evidence offered to prove any alleged victim's sexual predisposition pro-hibits the admission of any truthful evidence that involves actual physical conduct or that implies sexual contact, the rule does not reach evidence offered to prove allegedly false prior claims by the victim; this is so because evidence of false statements of unrelated sexual assaults are not evidence of sexual conduct per se, and such statements bear directly on the credibility of the purported victim in a subsequent case. Rules of Evid., Rule 412. State v. Clark, 2009 UT App 252, 219 P.3d 631 (Utah Ct. App. 2009).

A victim's prior false accusations of sexual abuse ordinarily may be admissible in defense to a later charge of sexual abuse. Roadcap v. Com., 50 Va. App. 732, 653 S.E.2d 620 (2007).

The complaining witness in sex offense cases may be cross-examined about prior false accusations, and if the witness denies making the statement, the defense may submit proof of such charges; however, such accusations are admissible only if a court makes a threshold determination that a reasonable probability of falsity exists. Richardson v. Com., 42 Va. App. 236, 590 S.E.2d 618 (2004).

If a trial court finds that there is a strong probability that an alleged victim of a sexual offense has made other statements that are false about being the victim of sexual misconduct, evidence relating to those statements may be considered by the trial court outside of the scope of the rape-shield law. West's Ann. W.Va.Code, 61-8B-11; Rules of Evid., Rule 404(a)(3). State v. Wears, 665 S.E.2d 273 (W. Va. 2008).

In prosecution for sexual assault, trial court abused its discretion by not allowing testimony of witness or cross-examination of victim regarding victim's prior allegation of rape, which victim denied making, but which witness testified victim made and then later recanted, where there was no question that alleged rape did not take place so that allegation was false, where rape shield law did not prohibit admission into evidence of false accusations of sexual mis-conduct, where evidence of victim's prior untruthful sexual assault allegations was relevant to issue of her credibility, and where independent review of record indicated that evidence was probative and not unfairly prejudicial. State v De Santis (1989, App) 151 Wis 2d 504, 445 NW2d 331.