United States v. Harris

Ferguson, Judge

(dissenting):

Were it not for the ruling of the majority on the second issue, my concurrence would be outright. To my way of thinking the reasoning and conclusion reached on that issue is fallacious. The challenged evidence was inadmissible. It was irrelevant and immaterial for the purpose of impeaching the accused’s credibility, nor did the accused on direct examination open the door to it. The accused’s defense was that his intimacies with the two girls rested upon paternal affection ■ which he was accustomed to demonstrate toward his own children. Trial counsel countered this defense by attempting to dispel the accused’s explanation by showing an absence of filial regard. Adulterous conduct has not such a relationship to a filial attitude that this form of conduct would in any way explain or show the accused’s motivating factor for intimate physical conduct with pre-adolescent young girls. It has no bearing on behavior pattern of seeking sexual gratification from the very innocent and immature. At most, the information served only to prejudice the court members toward the accused. I would hold reversible error on this issue.