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:
“First, sex offenses are not any easier to charge or any more difficult to disprove than any other case. In fact, often it is just the opposite. Studies show that ‘rape is rarely reported to anyone, and women who do report the crime often wait days, weeks, months, or even years before confiding in a family member, a friend or a rape crisis counselor, much less going to the police.’ The fact is that in sex offenses, it is often extremely difficult for the victim to come forward. And these offenses are no more difficult to disprove than any other accusation. As with any other charge, a defendant may argue mistaken identification, consent, failure of the State to meet its burden of proof, or any other defense available in a criminal case.
“Credibility of the witnesses is no more important in sex offenses than in any other case. Any case can involve a swearing match between two witnesses: an assault in which the defendant and the victim are alone and the defendant threatens the victim with imminent bodily injury; a kidnapping in which the defendant restrains the victim in an isolated location and the victim eventually escapes; an attempted theft in which the defendant and the victim are alone and the defendant grabs the victim’s purse but is unable to get it away from the victim.
In each of these examples, there is no physical evidence and there are no additional witnesses to the crime. In contrast, although some sex offenses have no corroborating physical evidence, many sex offenses do — such as evidence of victim penetration or traces of the attacker’s DNA. So the complainant’s and the defendant’s credibility are no more critical issues in sex offense cases than in any other type of case.
“Any emotions associated with sex offenses are all the more reason to prevent admission of prior false accusations by the victim … we [have] said that ‘sexual offenses are highly emotional issues in our society and the defendants are regarded differently from the ‘ordinary’ criminal.’ But the same is true for victims of a sexual offense. They, too, are regarded differently from the ‘ordinary’ victim. No other victim of any offense is so likely to be accused of fabricating, fantasizing, or ‘asking for it.’ The increased emotional level associated with sexual offenses is all the more reason to refuse to allow the jury to be additionally confused by collateral acts of misconduct by a witness. Indeed, that is the entire purpose behind Rule 608(b).”
The CCA, however, did qualify its Lopez ruling by saying that while it did not believe there should be a “per se exception” to Rule 608(b), there could be cases where the Confrontation Clause requires the admission of a prior false allegation of abuse.
Two years later the CCA revisited its Lopez ruling: this time to decide whether the evidence of the prior false allegation of abuse could be introduced as an “inconsistent prior statement” as authorized by Rule 613(a). This rule allows for the introduction of prior statements made by a witness which are inconsistent with their trial testimony. The victim in Lopez’s case had testified that he never “lied about big things” and in rejecting the premise that this was a prior inconsistent statement with the false allegation of abuse he had leveled against his mother, the CCA relied upon its previous position with respect to Rule 608(b):
“’ … The prior accusation was never shown to be false. The record reflects that the Texas Department of Human services ‘closed’ the case and ‘ruled out’ the abuse. But their file also indicates that the ‘likelihood of maltreatment is moderate’ and that the case closed because the mother was seeking counseling. This could simply indicate a lack of evidence to prove the allegation at that time, or an administrative decision that, despite the allegation’s validity, the parties would best be served by closing the case.’”
Seven years later in 2009, the CCA, in Hammer v. State, considerably back-tracked on the Lopez decisions. Murray Hammer was convicted of indecency with a child who had previously made false allegations of abuse. The victim was a troubled 15-year-old teenager who had a long history of being under the supervision of Child Protective Services (“CPS”) because her mother had a drug problem. In June 2005 the girl was removed from her mother’s home by CPS and sent to live with her father, Murray Hammer, and her grandmother. At the time the young girl was taking the mood-stabilizing drugs Prozac and Seroquel.
The sex abuse charge against Hammer arose after he and his daughter visited a family friend. The teenager alleged that all three of them drank vodka before she took her Seroquel and fell asleep on the living-room couch with her clothes on. The girl said she awakened sometime during the night to find that her pants and underwear had been removed and her father standing over her. She said she got up and went into the bedroom where her friend was “passed out” and went back to sleep. She said awoke again to find her father in bed with her “kind of spooning me” with “his hands on my crotch.” She reportedly got up again and went back to the couch. The next morning she said she told her father she knew what he had done and he supposedly told her that he was sorry. The girl did not report this alleged incident of abuse.
Two weeks later, according to the girl, she was sleeping in her grandmother’s bed when she allegedly awoke again to find her father behind her with his hands down in front of her pants rubbing her vagina. The girl said that when her father realized she was awake, he jumped up and left the room. The girl told a friend a week later about these episodes. The friend then reported the incidents to school officials who called CPS.
Criminal charges were brought against Hammer. At his trial the daughter testified that when she lived with her mother, she could do “pretty much” whatever she wanted to but that her father was strict and insisted she obey the rules of conduct he had laid down. The daughter admitted she was often extremely angry with her father about these strict rules, especially the curfew rule against her staying out late at night. She said this particular rule led to a lot of “fights” between them. However, when asked by Hammer’s attorney whether she had ever said that if her father did not leave her alone, she would get him sent to prison or whether she had ever told anyone that the sexual incidents never occurred, she denied having done so.
Hammer’s attorney sought to have admitted the teenager’s medical records which included a July 2005 sexual assault examination conducted one month after she went to live with her father. This examination followed an accusation she had made that another man had “sexually assaulted” her when she ran away from home. Her father had taken her to the hospital to determine if his daughter had been sexually assaulted. During this examination, the girl had told the examining nurse that she was angry with her father because he wanted “to prove I had sexual intercourse with one of the guys that I ran away with.” She then told the nurse (and would later tell yet another witness) that when she was 13 years of age, an uncle had put his hands on her genital area which was the very same conduct she had accused her father of doing.
Hammer’s attorney also discovered that the girl had told a friend that she falsely blamed one of the guys she ran away with having sexually assaulted her because she had actually been with another man. The girl’s grandmother also told Hammer’s attorney that her granddaughter had told her that every one of the girl’s mother’s boyfriends had molested her. The grandmother revealed yet another instance where the girl had ran away from home with a cousin and called on a cell phone to say the girls had been kidnapped by five men and were being raped by them.
Hammer’s attorney argued before the trial court that the jury should hear this evidence of prior false abuse allegations because (1) it was relevant to the alleged victim’s truthfulness, (2) it was permissible under the Confrontation Clause, and (3) it would show the girl’s motive of falsely accusing her father because he was trying to stop her “wild’ conduct. The trial judge, however, refused to allow the jury to hear this impeachment evidence because she believed its prejudice outweighed its probative value.
The CCA disagreed, saying the evidence was “strong support” for Hammer’s defense theory that his daughter had a motive to falsely accuse him of the sexual molestation. While noting that the Texas Rules of Evidence do not contain a specific rule permitting the use of bias or motive evidence, the CCA said Rule 613(b) presumes a right to admit such evidence “because it deals with how the witness may be examined concerning bias or interest and when extrinsic evidence of that bias or interest may be admitted.”
The CCA then offered two additional reasons why the prior false allegations could have been properly admitted. First, the court cited Rule 412 which contains an explicit “motive or bias” exception to the statutory bar prohibiting evidence of an alleged victim’s prior sexual conduct. Second, the CCA said the Confrontation Clause may have required admission of the impeachment evidence had Hammer been able to show that he had no other means except through cross examination to show his daughter’s motive to fabricate the sexual molestation allegations against him.
The trial judge in the Hammer case was no doubt influenced by the CCA’s earlier strict decision in Lopez. Clearly it is time for the Texas Legislature to step up to the plate; and like at least 36 other states and two federal circuits—the Fifth and Seventh—create a per se exception to Rule 608(b) allowing juries to hear evidence of prior false abuse allegations made by an alleged sexual assault victim. Defense attorneys have a difficult enough time combating fabricated forensic evidence and mistaken identifications in “stranger-on-stranger” sexual assault cases without being prevented from presenting evidence of an alleged sexual assault victim’s prior false abuse allegations.
Sexual abuse allegations, especially those by children, are easy to make and even easier to prove in a court of law. A defendant facing a sexual assault charge should have a clear statutory right to impeach a victim’s testimony when that victim has a history of prior false abuse allegations. A person should not be convicted, sent off to prison, and become a register sex offender for life based solely on a victim’s testimony when it can be shown that the victim indeed has a history of leveling false allegations of abuse. A jury should hear this history in order to properly weigh the victim’s credibility.
The Sixth Amendment’s right of confrontation is one of the fundamental guarantees deemed essential to the type of due process necessary for the protection of life and liberty. The Confrontation Clause’s mandate is violated when an accused right to cross examine a witness on any matter relevant to the accusation is restrained. It is only through full and fair cross examination that defense lawyers can probe and expose faulty, confusing or evasive testimony. Any rule that limits this robust testing of the evidence, especially in sex crimes involving children where defendants are often “presumed” guilty, is contrary to the spirit and letter of the Constitution.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization