Confronting Witnesses with Prior False Allegations to Support Theory of Bias, Motive or Interest
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
One of the most devastating crimes that can happen to anyone is to be falsely accused of having sexually assaulted a child. A significant number of potential jurors in child sexual assault cases readily admit in jury selection, voir dire, that they do not believe a child would “make up” a story about being abused. But we know it happens (here, here, and here). Children lie about sexual abuse for an endless assortment of reasons: mom told them to do it in bitter divorce custody disputes; they want to “get even” with a relative who was responsible for them being disciplined; they want to be removed from a household, especially in foster care, in which there are a lot of behavioral restrictions; they are emotionally unstable or mentally ill.
But can a defendant charged with a child sexual assault offense present evidence that the victim has made prior false abuse allegations?
In 2000 the Texas Court of Criminal Appeals “CCA”), in Lopez v. State, held that Rule 608(b) of the Texas Rules of Evidence prohibits the introduction of evidence of prior false abuse allegations. Rudolfo Lopez was convicted of forcing a 12-year-old boy to perform oral sex on him over a period of several months. He was given a 12-year prison sentence. His attorney at trial had sought to introduce evidence that two years before the sexual abuse the boy had made a false allegation of physical abuse against his mother; namely, that the mother had allegedly thrown him against a washing machine. The boy’s false allegation against his mother had been made to the Department of Human Services. Citing Rule 608(b), the trial court refused to allow Lopez’s attorney to introduce the evidence.
Rule 608(b) provides that “specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”
The question squarely before the CCA was whether, in a case involving a sex offense, the Confrontation Clause set forth in the Sixth Amendment of the U.S. Constitution requires that evidence of a victim’s prior false allegations of abuse against a person other than the defendant be admissible. The U.S. Supreme Court, in Davis v. Alaska, held that the “primary interest” guaranteed by the Confrontation Clause is the right of cross-examination. The CCA and Texas courts of appeals have interpreted this Supreme Court mandate to mean “each Confrontation Clause issue” must be decided on a “case-by-case” basis and that a trial court must balance the probative value of the evidence against whatever risks its admission may produce (here, here, and here).
While the CCA pointed out that some 36 states have carved out an exception to their impeachment statutes allowing for the introduction of prior false accusations of abuse under the Confrontation Clause, Texas’ highest court of criminal appeals was not impressed; and, in fact, criticized those 36 states, saying they relied upon nothing more than “generalizations” to justify their exceptions and such “generalizations are just not true in every case.” Saying that none of the rationales utilized by the 36 states for their impeachment exceptions persuaded the court to “create an across-the-board exception to [Rule 608(b) for sex offenses,” the CCA then detailed its position with the following reasons:
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