State v. Kelley

Berdon, J.,

dissenting. I respectfully disagree and would set aside the conviction and order a new trial.

I

The trial court unduly restricted the cross-examination of the alleged victim, which I believe resulted in the infringement of the defendant’s right to confrontation under the sixth amendment to the United States constitution. The defendant sought to question the victim regarding a prior, allegedly false, accusation that another person sexually assaulted her.

The state objected to this line of cross-examination on the grounds of relevance and a claimed violation of General Statutes § 54-86f, the rape shield statute. Indeed, the state had previously filed a motion in limine to prevent examination of the victim regarding this incident. On appeal, the state abandoned any reliance on the rape shield statute. See State v. Cassidy, 3 Conn. App. 374, 380-82, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), citing General Statutes § 54-86f (4) (noting that rape shield statute permits evidence of prior sexual conduct if it is “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights”); Commonwealth v. Bohannon, 376 Mass. 90, 95, 378 *571N.E.2d 987 (1978) (rape shield statute inapplicable to impeachment evidence of prior false allegations by complainant).1

We recently noted that “[t]he sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. State v. Milum, [197 Conn. 602, 608-609, 500 A.2d 555 (1985)]. The primary interest secured by confrontation is the right to cross-examination; Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); and an important function of cross-examination is the exposure of a witness’ motivation in testifying. Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. State v. Lubesky, 195 Conn. 475, 481-82, 488 A.2d 1239 (1985).” (Internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 248-49, 630 A.2d 577 (1993). In particular, courts have allowed cross-examination or presentation of evidence regarding prior false complaints by sexual assault complainants. People v. Hurlburt, 166 Cal. App. 2d 334, 339-43, 333 P.2d 82 (1958); Little v. State, 413 N.E.2d 639, 643 (Ind. App. 1980); Commonwealth v. Bohannon, supra, 376 Mass. 93-95; State v. Baron, 58 N.C. App. 150, 152-54, 292 S.E.2d 741 (1982).

The majority appears to reject the defendant’s claim for two reasons. First, it relies on State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988), but that case is inapposite. In Kelly, the defendant sought to introduce testimony to show that a person previously accused of *572sexual assault by the victim was acquitted of the charge. Id., 375. This is clearly irrelevant. In the present case, the defendant sought to cross-examine the victim in order to obtain an admission from her that she had previously made a false complaint of sexual assault against another person. See State v. Nab, 245 Or. 454, 459, 421 P.2d 388 (1967) (“The rule is limited to the reception of evidence that the [complainant] had admitted the falsity of the charges or they had been disproved. If, of course, she admits their falsity on the stand the evidence would be competent. ” [emphasis added]); Covington v. State, 703 P.2d 436, 442, reh. granted on other grounds, 711 P.2d 1183 (Alaska App. 1985) (cross-examination must be predicated on factual showing of falsity “or where the witness [has] conceded . . . falsity”).

Furthermore, the rule in Kelly is qualified in a manner that makes crystal clear that this line of questioning was a proper subject of cross-examination. “Unless she had raised a false claim before, her conduct with another man had no bearing on her conduct with this defendant or on the credibility of her testimony in this case.” (Emphasis added; internal quotation marks omitted.) State v. Kelly, supra, 208 Conn. 377; see also State v. Cassidy, supra, 3 Conn. App. 382 (trial court “was correct in noting that, unless the proffered testimony was to show that the victim previously made a false claim of sexual assault following the claimed similar, consensual sexual conduct, the evidence should be excluded”).

Second, the majority suggests that the defendant was on a fishing expedition because he “presented no evidence to the trial court concerning the alleged prior false accusation of sexual assault.” I agree that, generally, a defendant should not be allowed to cross-examine a complainant in a sexual assault case regarding a prior, allegedly false, accusation unless the *573defendant satisfies the trial court that there is a factual predicate for the claim. See, e.g., Commonwealth v. Bohannon, supra, 376 Mass. 95; State v. Demos, 94 Wash. 2d 733, 736-37, 619 P.2d 968 (1980). Indeed, we should adopt a rule requiring a defendant who wishes to pursue such a claim to obtain a preliminary ruling from the trial court. Covington v. State, supra, 703 P.2d 442.

The defendant, however, indicated that he sought to question the victim regarding a false claim against a named third party whom he identified for the court.2 The state, by filing its motion in limine seeking to *574exclude the evidence, had conceded that there was a prior sexual encounter. Furthermore, the defendant offered to cut off the line of questioning should the complainant deny the existence or falsity of the prior accusation.3 Moreover, the defendant explained that any court records that might exist concerning the prior incident were not available to him, and therefore he could not make a complete preliminary showing.4 I recognize that the factual basis for falsity was thin, but because of the following circumstances of this case, the defendant should have been allowed to question the victim.5

*575There was no forensic medical evidence of forcible sexual intercourse and no other independent evidence that the defendant sexually assaulted the victim. The defendant claimed an alibi defense, and disclaimed any sexual contact with the victim. The only evidence linking the defendant to the alleged assault was the in-court and out-of-court statements of the victim. The out-of-court hearsay statements of the victim were admitted as constancy of accusation evidence through very credible witnesses—a police officer, a nurse, a psychiatrist, and the examining physician. As if this was not enough, the trial court admitted into evidence the tape recording of the victim’s out-of-court complaint to the police. Under these circumstances, it was crucial that the defendant be allowed liberal cross-examination of the victim.

Accordingly, I would hold that the trial court abused its discretion in not allowing the defendant to pursue his cross-examination of the victim, reverse the conviction and order a new trial. “[T]he proffered question would have gone to the very heart of the witness’ credibility. . . . The proffered cross-examination, if successful, could have cast sufficient doubt on the prosecuting witness’ credibility to render her unworthy of belief in the mind of at least one juror. Therefore, the error in this case was harmful, and [the defendant’s] conviction must be reversed.” State v. Cox, 298 Md. 173, 184-85, 468 A.2d 319 (1983).

II

I continue to be concerned about the contours of the rule admitting constancy of accusation evidence in sexual assault cases. State v. DePastino, 228 Conn. 552, 573, 638 A.2d 578 (1994) (Berdon, J., dissenting). In the present case, on appeal, the defendant argues that the rule is founded on premises that are anachronistic, outmoded, and sexist.

*576The genesis of the rule in Connecticut is found in State v. De Wolf, 8 Conn. 93, 100 (1830): “If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it, and that testimony should be received to confirm her story.” This reasoning reflects the nineteenth century thinking that women were second class citizens who could not be believed without corroboration. This sexist attitude, a symptom of our nation’s “long and unfortunate history of sex discrimination” (internal quotation marks omitted); J. E. B. v. Alabama ex rel. T. B., U.S. , 114 S. Ct. 1419, 1425, 128 L. Ed. 2d 89 (1994); was reinforced by the absolute exclusion of women from the judicial process at that time. “[U]ntil the 19th century, women were completely excluded from jury service” in the United States and “[mjany States continued to exclude women from jury service well into the present century, despite the fact that women attained suffrage upon ratification of the Nineteenth Amendment in 1920.” Id., 1422-23. There were no female members of the Connecticut bar until 1882. In re Hall, 50 Conn. 131 (1882); see Bradwell v. State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring) (under “the law of the Creator,” women were destined to “fulfil the noble and benign offices of wife and mother” and were ‘ ‘evidently [unfit] . . . for many of the occupations of civil life” including law). Finally, there were no female members of the judiciary in Connecticut in 1830 and, in fact, there were none for the next 130 years.6 In this social con*577text, it is not surprising that prosecutors needed something more than a woman’s uncorroborated word to obtain a conviction.

In succeeding generations, ironically, the constancy rule broadened in scope even as inroads were made against sex discrimination. In 1876, the court allowed out-of-court revelations about the details of the sexual assault by complainants to be admitted. “Why has the rule been adopted that in prosecutions for rape, and for attempts to commit rape, the public prosecutor may show that the woman on whom the assault was made complained of it to her friends? It is simply because such a course would be natural if the crime had been committed, but very unnatural if it had not been. But her natural impulses would prompt her to tell all the details of the transaction. Why, on the same principle, ought not her statement of the details to be evidence? . . . If her story were true, the evidence would show constancy in the charge even to the details, and the truth [of her testimony] would the more clearly appear.” State v. Kinney, 44 Conn. 153, 156-57 (1876).

Although such evidence is arguably justified in certain circumstances as a form of prior consistent statement testimony, provided the requirements of that rule are met,7 the admission of details, for all practical purposes, transforms the rule into “a true hearsay exception, not just a rule of credibility.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.22.1, p. 410; see State v. Ouellette, 190 Conn. 84, 97, 459 A.2d 1005 (1983); State v. Hamer, 188 Conn. 562, 565, 452 A.2d 313 (1982) (statements “admissible as an exception to the hearsay rule to corroborate the complainant’s tes*578timony by showing constancy of accusation”).8 In admitting the details, Connecticut stands nearly alone in modern American jurisprudence.9

Simply put, the hearsay exception of constancy of accusation is predicated on the assumption that unless the victim—who in most instances is a female— announces to the world that she has been a victim of a sex crime, her credibility is suspect. Indeed, the majority endorses this justification when it states that “it would be natural for the victim of actual or attempted sexual assault to relate the incident to others if it had actually happened, but not if the incident had not occurred.” I find this rationale to be offensive. We do not engage in this reasoning with respect to any other crime involving an adult victim.

Furthermore, the empirical assertion that an actual victim of sexual assault would naturally relate the incident to others stands in opposition to the real experiences of women reported in the literature. S. Estrich, “Rape,” 95 Yale L.J. 1087,1088-89 (1986).10 In addi*579tion, the second assumption underlying this empirical claim—“but not if the incident had not occurred”— defies common sense. If anything, the rule gives a person who has fabricated an assault an incentive to report the crime and its “details” to friends and acquaintances.11 Therefore, constancy evidence not only has its origin in a sexist assumption, but allows inherently unreliable evidence to support a criminal conviction.

Nevertheless, I do not reach the ultimate issue of whether societal concerns have undermined the continued viability of the constancy of accusation rule in this state. I leave it to another day when the issue is appropriately raised before the trial court.12

Accordingly, I respectfully dissent.

The defendant also argued that the evidence would be admissible under the second exception to the rape shield law. See General Statutes § 54-86f (2) (admitting evidence of prior sexual conduct of the victim if it is “offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct”).

The following excerpt from the trial transcripts indicates the foundation for the questioning provided by the defendant.

“Ms. Lifton [Defense Counsel]: I would ask her . . . isn’t it true that in addition to . . . [the victim’s boyfriend] that you’ve had sexual relations with a gentleman by the name of . . . and that in connection with those relations at one time or another—if she says yes—then I’ll say isn’t it also true that at one time either before, during or after your relationship with him you made an accusation of rape against him, and if she says yes then I’ll go on to inquire as to ... whether or not the accusation was true or false.
ft * *
“The Court: And are we going to bring [the victim’s boyfriend] in?
“Ms. Lifton: No, Your Honor, I have no intention of bringing [the victim’s boyfriend] in, because he was not involved in this other than the testimony we heard this morning about her having sexual relations with [him] the night before. There was no other relevance to [the victim’s] relationship [with her boyfriend].
“I’m not trying to impeach the witness as to . . . her prior sexual conduct concerning any promiscuity or anything like that. There’s no evidence here at all of any sexual relationship between my client and [the victim]. There’s no evidence that they had a sexual relationship. So, there’s no issue of promiscuity or that she went willingly with him or anything like that.
“Our defense is that the rape didn’t take place. So, I’m not concerned, as a person, as a woman I’m not interested in harassing . . . [the victim] about her prior sexual history. She has a right to have boyfriends. But I think it’s important the jury hear that this is not the first accusation of rape that the victim has made.
“The Court: That’s not at all relevant.
“Ms. Lifton: Pardon me?
*574“The Court: That is not at all relevant, that this is the second, third, fourth or any other number of accusations of rape.
“Ms. Lifton: It is relevant if I can show that the prior accusation was false, Your Honor, and . . . my claim is that this accusation is false. It goes to the credibility of the witness.
* * *
“The Court: Counselor, the offer that you have made to the court I think is insufficient and the line of inquiry as you present it to the court is not relevant, and you may not make that line of inquiry.
“Ms. Lifton: I take exception, Your Honor.
“The Court: Yes.
“Ms. Lifton: Thank you, Your Honor.”

“Ms. Lifton: All I’m asking for is permission to ask her the question. She may stop me.

“The Court: Supposing she says yes, I filed a complaint.

“Ms. Lifton: And I’ll ask her, was the accusation false?

“The Court: And if she says—

“Ms. Lifton: If she says no, that’s the end of it. Obviously I need to have some sort of evidence that it was, if she says no. But I’m just asking for permission to ask the question.”

“The Court: When do you think the prior complaint was made?

“Ms. Lifton: Your Honor, I’m not sure, that’s why I need to cross-examine. I believe it was made at the time the witness was thirteen or fourteen years old, and I know the name of the person against whom the complaint was made, however, I am unable to obtain any court records concerning that complaint. I have no evidence whatever that there was any formal charge brought against that other person.”

I note that, although he never requested it, the defendant could have been given the opportunity to determine if there was a factual basis by questioning the victim outside the presence of the jury.

There were no female members of the judiciary until 1960, when Margaret Connors Driscoll was appointed to the Juvenile Court. Hartford Courant, July 16, 1970, p. 42, col. 1. In 1972, JoAnne Kiely Kulawiz became the first woman judge to preside in any court other than the Juvenile Court when she was appointed to the Circuit Court. Hartford Courant, March 26, 1972, El, col. 1.

See Thomas v. Ganezer, 137 Conn. 415, 419-20, 78 A.2d 539 (1951) (prior consistent statements admissible to rebut claim of recent fabrication); see generally State v. Jeffrey, 220 Conn. 698, 713-14, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992).

The transformation of the rule into a functional hearsay exception was completed when this court held that “the trial court may presume . . . that the victim is impeached by a suggestion of recent contrivance.” State v. Ouellette, supra, 190 Conn. 99.

Professor Wigmore identified only one other jurisdiction, Tennessee, that, in this century, has stated its willingness to allow testimony of details related by an adult victim. 4 J. Wigmore, Evidence (1993 Sup.) p. 400, citing State v. Sanders, 691 S.W.2d 566 (Tenn. Crim. App. 1984) (victim was child but rule set out in general terms). There are several jurisdictions that will allow testimony of details if the victim is a young child. See, e.g., People v. Marrs, 125 Mich. 376, 379-80, 84 N.W. 284 (1900). Otherwise, although constancy evidence is admitted in many states, it is almost universally limited to the bare fact of a complaint, or the fact of a complaint plus the identification of the perpetrator. “That she complained of a rape, or an attempt at rape, is all that principle permits; the further terms of her utterance (except so far as to identify the time and place with that of the one charged) are not only immaterial for the purpose, but practically turn the statement into a hearsay assertion, and as such it is inadmissible . . . .” 4 J. Wigmore, supra, (4th Ed. 1972) § 1136, p. 307.

The “rape victim must bear the heavy weight of the silence that surrounds this crime. At first, it is something you simply don’t talk about. Then *579it occurs to you that people whose houses are broken into or who are mugged in Central Park talk about it all the time. Rape is a much more serious crime. If it isn’t my fault, why am I supposed to be ashamed? If I shouldn’t be ashamed, if it wasn’t ‘personal,’ why look askance when I mention it?” S. Estrich, supra, 95 Yale L.J. 1088-89; see State v. Hill, 121 N.J. 150, 158-59, 578 A.2d 370 (1990) (continued adherence to corroboration requirement “willfully ignored . . . the possibility that women would keep silent about rape because more than any other violent crime it could shed shame and embarrassment on the victim”).

On the other hand, this court has stated another justification for the rule. “Our present doctrine of constancy of accusation facilitates the prosecution of an outrage which is almost always ‘an inherently furtive act.’ People v. Linzy, 31 N.Y.2d 99, 103, 286 N.E.2d 440, 335 N.Y.S.2d 45 (1972).” State v. Dabkowski, 199 Conn. 193, 202-203, 506 A.2d 118 (1986). I recognize the reality that sexual assault trials, when turning on credibility as in the present case, are not only difficult to defend, they are also difficult to prosecute. Nevertheless, the present case is evidence that this court has tipped the scales in favor of the prosecution because the defendant was prevented from effectively cross-examining the complainant and challenging her credibility, even after her credibility was bolstered by the admission of her tape-recorded statement and the testimony of the four witnesses through whom the hearsay statements were admitted.

The state points out that these societal concerns were not raised in the trial court. Although the defendant raised the validity of the constancy of accusation rule under the federal and state constitutions, I need not reach the issues in this dissent because I would reverse on the cross-examination issue. Neither do I reach the remaining issues discussed by the majority.