The Only Defense In Sexual Assault Cases Not Subject To Rebuttal Evidence, Keeping Extraneous Crimes, Wrongs, and Acts Out

By Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


Writing in her book “The Cross-Examination of a Young Child in a Sexual Assault Case: Voice for the Defense” (Oct. 1999), Annabelle Hall said that jurors following a sexual assault trial involving a child raise the following questions:


  • Why would a child lie about sexual abuse?
  • How can a child know so much about sex if she has not been abused?
  • Would a child lie about sexual abuse?
  • Why would a child make the story up?


These questions clearly demonstrate why a defense attorney in a sexual assault case faces such a difficult task establishing a “fabrication” defense. A “fabrication” defense in a sexual assault case is premised on the theory that the victim has “made up” or deliberately lied about the sexual assault. As difficult as it may be to logically wrap the mind around this concept, reliable studies (including the U.S. Justice Department) have revealed that anywhere between 25 to 60 percent of all sexual assault allegations are false. Put simply, somewhere between one-quarter to one-half of the rape allegations leveled in this country are fabricated for one reason or another. Many involve child victims.


Why would a child lie about such a thing?


In Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio, Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky partially answered this question:


“False allegations of sexual abuse are usually simply incorrect. They are initiated by parents or a third party, e.g., this occurs due to the hyper-vigilence [sic] of parents of young children after their parents have been sensitized by sensational news media coverage of sexual abuse scandals. Pediatricians and child mental health professionals by law also make reports to Child Protective Services of any ‘suspected’ child abuse without having to confirm its veracity. They may be acting perfunctorily and simply reporting abuse based upon a small amount of information provided by the mother, the child, or exhibited by the child’s physical or behavioral symptoms. I know clinicians who feel compelled to report even when they believe it’s highly improbable that abuse has occurred. They are practicing defensive medicine. The report itself may then become overly weighted “evidence,” as though there had been some real investigatory work done or an expert professional opinion rendered about the abuse, though the report is simply conforming to the law to report any suspected child abuse.


Remember, very disturbed children, previously sexually abused children, bipolar children and others may exhibit eroticized behavior without being sexually abused. It is then easy to understand why a ‘third party’ makes a report.”

Once that initial sexual assault allegation is made, it assumes a life of its own and the “investigation” process is geared to give it legitimacy. Prosecutors readily accept these cases because convictions are fairly easy to obtain. Seasoned sexual assault prosecutors immediately began to scour the defendant’s past for other “extraneous offenses” of a similar nature or other “bad acts” that tend to shore up the defendant’s guilt before a jury. This is generally referred to as “other crimes” evidence. While the rules of evidence generally restrict this prejudicial evidence in the prosecution’s case in chief, the State can use it to rebut virtually every defense raised by the defendant, except the defense of “fabrication.” The law on this issue is well-established in Texas.


The Court of Criminal Appeals in Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) held that Rule 404(b) of the Texas Rules of Criminal Evidence reflects a policy decision by the rule makers that evidence of extraneous misconduct at the guilt phase of trial having no relevance apart from inferences of character conformity is more prejudicial than probative as a matter of law, and trial court has no discretion to rule otherwise.


In deciding whether to admit evidence of extraneous offenses, the trial court must first find the offense or act relevant under 404 and then conduct a balancing test under Rule 403 of the Texas Rules of Criminal Evidence. This balancing test requires the court to weigh the probative value of the extraneous offense evidence against its undue prejudice, confusion of the issues, tendency to mislead the jury, and undue delay. See: Gigliobianco v. State, 210 S.W.3d 637, 642 (Tex.Crim.App. 2006).


The Court of Criminal Appeals has held that the following factors should be considered in a Rule 403 balancing analysis:  (1) the strength of the evidence in making a fact more or less probable, (2) the potential of the extraneous-offense evidence to impress the jury in some irrational but indelible way, (3) the amount of time the proponent needed to develop the evidence, and (4) the strength of the proponent’s need for this evidence to prove a fact of consequence. See: Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999).


When the State files the mandatory “notice” that it will use extraneous sexual assault offenses, the trial court must conduct a Rule 403 balancing test before admitting the testimony of the witness testifying about the extraneous offenses. The trial court is not permitted to assess the credibility of the witness who will testify about the extraneous offenses based. Witness credibility is an issue solely for the jury to decide. See: Montgomery v. State, supra.


Citing Wright and Graham’s Federal Practice and Procedure, the court of criminal appeals explained: “[I]t seems relatively clear that in the weighing process under Rule 403 the judge cannot consider the credibility of the witnesses. In the first place, credibility is a question for the jury; to permit the judge to exclude evidence on the grounds that he thinks it incredible would be a remarkable innovation and may even be a violation of the right of trial by jury. In the second place even if the jury were not involved, in order to assess the credibility of a witness the judge would have to hear his testimony so as to assess his demeanor, know what evidence is available to corroborate his testimony, and perhaps even look at the impeaching evidence that the opponent plans to introduce. Rule 403 presupposes that the judge can determine the admissibility by assessing logical inferences at the time it is offered. If the judge were to assess credibility as well, it is difficult to see how this could be done without first hearing nearly the entire trial.’”  Id., at 382.


Against this legal backdrop, an en banc court in Webb v. State, 36 S.W.3d 164 (Tex.App-Houston [14th Dist.] 2000) confronted the extraneous offense issue in an aggravated sexual assault case involving a topless dancer. Id., at 171. During the trial, the State introduced the testimony of another topless dancer who testified that the defendant sexually assaulted in a manner similar to the crime charged. The defendant challenged the issue on appeal:


“Porter, another topless dancer who worked at the same nightclub as Baird, testified that the appellant sexually assaulted her in much the same way he was accused of sexually assaulting Baird. In describing the events leading up to her attack, Porter testified that the appellant offered her a ride home from the nightclub after she became intoxicated. According to Porter, the appellant took her to his home and told her she should sleep there for a few hours before going home to her son; after she fell asleep, the appellant got on top of her and began choking her. Porter testified that the appellant then commanded her to have oral and vaginal sex with him. She did.” Id., at 180.


Relying upon an aggravated sexual assault of a child case that dealt with the extraneous offense issue, the appeals court held that the trial court committed reversible error by allowing Porter’s testimony:


“In Owens[v. State, 827 S.W.2d 911, 914 (Tex.Crim.App. 1992)], the only ultimate fact in dispute was whether the appellant committed the charged offense, i.e., aggravated sexual assault of a child. There was no dispute as to identity, motive, intent or any of the other exceptions listed in rule 404(b). The jury had the testimony of the appellant and the complainant, appellant’s daughter; the State then produced another of the appellant’s daughters as a rebuttal witness after the appellant denied the offense occurred. The Court of Criminal Appeals held that evidence of an extraneous offense tending to show the appellant’s ‘system’ could not assist the jury in its determination of whether or not the appellant molested the complainant except by showing character conformity in violation of rule 404(b).


”Likewise, the ultimate fact in dispute here is whether the appellant committed aggravated sexual assault of Baird. At trial, the court ruled that the extraneous offense evidence involving Porter would be admitted because it was a ‘signature type’ offense that showed ‘opportunity, plan, maybe motive, scheme . . . .’ However, there was no dispute as to identity, motive, intent or any of the other exceptions listed in rule 404(b). The State produced Porter in its case in chief for the stated purpose of challenging the ‘defensive theory’ brought out in the cross examination of Baird that she was mistaken or unsure about the events that occurred because of her high level of intoxication on the evening in question, i.e., to show the offense did not occur. Evidence of an extraneous offense against Porter in April or May of 1995, could not assist the jury in its determination of whether the appellant sexually assaulted Baird in August of 1996, except by showing character conformity in violation of rule 404(b). In other words, proof of the sexual assault against Porter served no probative function other than to show appellant as a person who commits sexual assaults in general, and, therefore, was more likely to have committed the sexual assault against Baird, an inference rule 404(b) strictly forbids.


”On this record, we cannot find that the assault on Porter had any true relevance apart from the appellant’s character or his actions in conformity therewith. Rule 404(b) proscribes the admission of such evidence. Because the trial court failed to identify any legitimate reason for allowing evidence of this extraneous offense and our independent review of the record reveals none, we find it was an abuse of discretion for the trial court to admit evidence of it.” Id., at 190-81.

After the en banc Webb decision was handed down, the court of criminal appeals qualified its per se 404(b) exclusion of extraneous offense evidence when offered as conformity of the defendant’s character by saying that such evidence can be presented in rebuttal to certain defenses raised by a defendant.


First, in Powell v. State, 63 S.W.3d 435 (Tex.Crim.App. 2001) the defendant in child indecency case asserted a “lack-of-opportunity” defense in both his opening statement and during the cross examination of the child complainant. Id., at 439. The court said the trial court did not err by allowing the state to present evidence of extraneous offenses to rebut the defense of lack of opportunity. Id., at 438.


Second, in Wheeler v. State, 67 S.W.3d 879 (Tex.Crim.App. 2002) the defendant in a child sexual assault case asserted two defenses: lack-of-opportunity and frame-up. The court said the trial court did not err by allowing evidence of extraneous offenses to rebut the “frame up” theory because the extraneous misconduct was similar to the charged conduct. Id., at 887.

Third, in Moses v. State, 105 S.W.3d 622 (Tex.Crim.App. 2003) the defendant in a public bribery case involving a police officer asserted two retaliation defenses. First, the defendant alleged that the criminal charge was brought against him because his wife had complained about other police officers violating a tow-truck policy, and, second, the criminal charge was not filed against him until after his wife made the charges against the other officers. Id., at 627. The court said the trial court did not err by allowing evidence of extraneous offenses to rebut the retaliation defenses.


It should be pointed out that the court of appeals in Bass v. State, 222 S.W.3d 571 (Tex.App.-Houston [14th] 2007) last year followed its en banc precedent in Webb against the State’s argument that Powell, Wheeler, and Moses undermined the precedential value of Webb. Id., 576-77. The Bass court – confronting a sexual assault case involving belated sexual assault allegations made by an adult female against a former pastor for sexual abuse when she was sixteen – ruled that a “fabrication” defense was distinguishable from the defenses raised in Powell, Wheeler, and Moses. The court found reversible error because the trial court admitted extraneous offenses demonstrating conduct similar to the conduct charged. Id., at 578.


More recently, however, the court of appeals seem to qualify Webb and Bass in State v. Bargas, 252 S.W.3d 879 (Tex.App.-Houston [14th] 2008). The Bargas court held that the use of extraneous offense evidence could be used in a “fabrication” defense case when that defense is laced with a retaliatory motive. Id., at 893-94. The defense in Bargas – another aggravated sexual assault of a child case – presented the defense that the child victim fabricated the sexual assault allegations in retaliation for her step-father’s temper and physical abuse. Id. at 893. While the Bargas court agreed with the Bass ruling that evidence of extraneous offense evidence is inadmissible in rebuttal to a straight fabrication defense, this evidence is admissible when a fabrication defense is mixed with another underlying defense theory. Id., at 891, FN 9.

Bargas has a chilling effect on a fabrication defense. The defendant cannot be realistically be put on the witness stand in support of the defense because he may inadvertently say something indicating lack-of-opportunity, retaliation, or some other motive for the child victim’s fabricated sexual assault allegation and this would open the door to rebuttal evidence involving extraneous offenses or prior bad acts. Bargas also limits the line of questioning of jurors on voir dire by defense and restricts what defense counsel may say in his/her opening statement because of the need for caution against raising any other defense theory outside the issue of fabrication.


In effect, a fabrication defense cannot meaningfully be developed with evidence supporting the defense, i.e., lack of opportunity or retaliatory motive. It must be established on cross-examination of state witnesses, particularly the victim. The jury must be convinced that the victim’s testimony is not credible, not worthy of belief. That is a Mount Everest-like hurdle, particularly in child sexual assault cases. It demands of thorough examination of all offense reports, an investigation into the victim’s background, and a complete fact-check of all the circumstances associated with the charged offense long before the actual trial begins. This background information is critical to a structured cross-examination of a sexual assault victim, especially when that victim is a child.


In their San Antonio presentation, attorney Schneider and Dr. Blotcky addressed what they called the “structure of the cross-examination” of a child sexual assault victim:


“Two concepts to consider in designing cross-examination of a child are reality monitoring and source monitoring…

Open-ended explanation with the child that leads to bizarre, unrealistic or impossible stories suggests either he’s reporting a fantasy or he’s defensively expressing his terror. An obvious example here would be that the child beat up the predator and threw him out the window.



Source monitoring is also a rich area for exploring validity. Reality monitoring refers to distinguishing if the event was real or imagined. Source monitoring looks to the origin of the information that the event actually occurred. Was the child told it occurred by his friends, by his parent, by C.P.S. or a detective? Often children have been told by a number of these people whether directly or by indirect positive reinforcement. And the story once told, children’s accounts are often reinforced and shaped to fit the picture. Some children are repeatedly told not to change their story in any detail because they will no longer be believed “even if they recall something small and change their mind about what happened, they should stay with the exact same story.”



Another illustration of this in daily life is a child’s recanting a story in a book or from a favorite movie as if it had actually occurred. These errors of “reality” and “source” fall under what we would classify as genuine. The child needs help in gradually working his way to distinguish reality for you. And this must be done patiently and using a nonthreatening style what you refer to as disarming.



Source and reality monitoring can be explored through a series of questions, e.g., : Tell me about what you like to do? Whom does that with you? What do you do with your mom? Tell me all about it? What do you do with your dad? Tell me what you do at school. Tell me about your teacher. So when you are alone with dad, do you remember feeling his hand touch your privates? Did someone tell you he touched your privates? If you remember him touching your privates, can you remember where you were? Who else was there? What happened next? And then what? How many times did he touch your privates? Can you tell us whether you remembered it happening first or did you hear about it from someone first? Are you ever confused about whether your mother told you or whether you actually remember it? Do you ever think it was someone else? How do you know it was your dad (teacher, etc.)?



Now some of these are hypothesis challenging and suggestive, but after the child has made the allegation and testified to it, you need to look for another hypothesis or explanation to confirm the child’s accurate recall and testimony or to impeach it. Henderson in (Westcott, H., Davies, G., and Bull, H. (2002) in their handbook Children’s Testimony outline the reasons children lie. Of particular interest, however, is the discussion of cross-examination. Studies reveal that lawyers tend to believe children were capable of remembering events accurately and being reliable witnesses and believed that false allegations of sexual abuse were rare (p. 280). Further, they had little idea of the possible causes of false allegations or the power of suggestion and therefore were not well equipped at mounting a defense. Attorneys were hesitant to use the age-appropriate language of the child. They also vastly underestimate the high proportion of cross-examination questions the child misunderstands.



Manuals suggest direct examination be in chronological and logical order to help the comprehension and retention of evidence and advise cross-examiners change subjects rapidly to confuse dishonest witnesses. Much of cross-examination theory she holds is in the effort of persuasion rather investigation and emphasizes controlling the witness’ disclosures. She[Henderson] reports that children are often cross-examined with the same goal. Direct examination is used not as investigatory, but as simply an organizer for the witness to retell his story. Cross-examination is not investigatory, it is intended to break down the story told, reshape it, or discredit the witness. Child witnesses are treated similarly and the power of suggestion is even greater with them.



The attorney’s attitude toward the child must be accepting warm and even calming. His attitude about the child’s version of his testimony can be incredulous and conveyed in his tone of voice suggesting to the child he should search for another version more pleasing to the cross-examining attorney. Cross-examination breaks most of the rules of a forensic psychiatric evaluation. Indeed, I suspect you would use most of the errors of a forensic evaluation in order to manipulate the testimony on cross, e.g., suggestion, leading, asking if the child would like to rethink his answer or response about a certain piece of testimony, etc. But, remember the cross-examining defense attorney is speaking to the court as well as the child. The jury to some extent will respond to your examination and factor that into their evaluation of the child’s credibility. Jurors remain generally sympathetic to child witnesses and attorneys must be sympathetic as well. Remember, the child witness-whether confused, honest or purposefully deceitful – is stressed, conflicted, frightened, and guilt ridden and needs your compassion.

The cross of the child, like any other witness, should have a beginning, a middle and a strong ending. Based on your investigation and preparation and defenses, an outline of your cross can include the following:


1.  Beginning:
Make the child talk.  You are a stranger and probably have never met the child or talked to the child.  Find a topic that will allow the child to relax.

2.  Identify who the child is:
Determine the physical abilities of the child.
What is the educational level of the child?
What is the child=s personality?

3.  Identify the child’s living environment:
a. Typical day of the child.
b. Type of housing for the child.
c. Who does the child depend on?
d. How many children or adults are in the home?

4.  If relevant, identify the basis for the child knowledge of sex.

5.  Determine the origins of the child’s story.

6.  Identify stressors in child’s life.

7.  Identify rewards for disclosing abuse.

8.  Watch for key prosecution phrases repeated in rote fashion by the child.

9.  Explore the child’s feelings for role players in the case and the strength of the child’s feelings toward them.

10.  Show the attention given to the child because he is a witness.

11.  The allegations:
a.  never repeat the abuse.
b.  bring out physical impossibilities.
c.  bring out prior inconsistent statements.
d.  reveal differences between other child witnesses.
e.  demonstrate vulnerability to suggestion.

12.  End on a strong note that leaves the jury with a positive feeling towards you.

During a cross of a 4-year-old boy, I asked if he had ever seen a teddy bear that I pulled from a box at my feet.  He asked to hold it.  We talked about it.  Then he wanted to take a nap with the teddy.  The child denied ever seeing the bear.  Later, I showed the jury a picture of the teddy bear in the child’s bedroom in my client’s house.” (Cross-Examination of Child Witnesses, presented at the 19th Annual Rusty Duncan Advanced Criminal Law Short Course in San Antonio,


Texas (June 15-17, 2006), Houston criminal defense attorney Stanley G. Schneider and Dallas doctor Mark Blotcky)

It is within the parameters of this kind of structured of cross-examination, like that described by Schneider andBlotcky, that the defense of fabrication is won or lost. Of course, each case is different and the cross-examination will have to be modified to suit the particular facts of each case. But the essential key to establishing a fabrication defense is through structured cross-examination. Carefully crafted open ended questions used to solicit details the prosecutor avoided, along with leading questions to assist in the truthful presentation of events are crucial.  An attorney can only prepare such a cross if they are completely familiar with the facts of the case and truly prepared for trial.  This requires preparation, and more preparation, by defense counsel.


But the rewards are tremendous. An innocent person will not be wrongfully convicted and have his/her life destroyed by a fabricated sexual assault allegation.