Delvin White v . Warden CV-02-280-JM 07/11/03 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Delvin White
v. Civil N o . 02-280-JM O p . N o . 2003 DNH 117 Jane Coplan, Warden New Hampshire State Prison For Men
ORDER
Petitioner Delvin White is an inmate at the New Hampshire
State Prison for Men (“NHSP”). In 1997, White was found guilty
on charges of committing one count of aggravated felonious sexual
assault and two counts of felonious sexual assault following a
jury trial in the Superior Court, Hillsborough County. White’s
convictions were affirmed on appeal to the Supreme Court of New
Hampshire (“NHSC”) in December 2000. In the instant action,
White seeks a federal writ of habeas corpus claiming that his
right to confront witnesses, secured by the Sixth Amendment to
the United States Constitution, was violated in the New Hampshire
state courts because the trial court prohibited all cross
examination of the complaining witnesses concerning their prior
allegations of sexual assault against other persons even though
White was able to establish the falsity of those prior allegations to a “reasonable probability.” White contends that
the trial court’s complete denial of any cross-examination
concerning the complaining witnesses’ prior allegations of sexual
assault was contrary t o , or involved an unreasonable application
o f , federal law as determined by the Supreme Court of the United
States. This is White’s first petition for a writ of habeas
corpus in the federal district court.
The Respondent in this action is Jane Coplan, NHSP Warden.
Respondent filed a motion for summary judgment on White’s habeas
petition under Rule 11 of the Rules Governing § 2254 Cases and
Rule 56 of the Federal Rules of Civil Procedure. Respondent
contends that there is no genuine issue of material fact, and
that she is entitled to judgment as a matter of law. White filed
an objection. The Court requested that the parties submit
supplemental memoranda after the United States Court of Appeals
for the First Circuit (“First Circuit”) issued its en banc
opinion in Ellsworth v . Warden, N.H. State Prison, N o . 02-1226,
–- F.3d –-, 2003 WL 21374024 (1st Cir. June 1 6 , 2003), which
addresses issues similar to those raised in the instant case.
After carefully reviewing the parties’ submissions, and the
relevant authorities, the Court finds that White has established
2 that his Sixth Amendment Confrontation Clause rights were
violated by the decisions of the New Hampshire state courts. The
Court finds that the New Hampshire state courts imposed an
unreasonable restriction on White’s right to cross-examine the
complaining witnesses under the facts of this particular case.
It is the opinion of this Court that White’s convictions were not
the result of a fair trial. Accordingly, for the reasons set
forth below, Respondent’s motion for summary judgment is denied
and the petition for a writ of habeas corpus is granted.
Background
I. Factual Background1
On March 2 , 1996, White spent the afternoon visiting a
friend and his girlfriend at their apartment in Manchester, New
Hampshire. The friend had two daughters, ages twelve and eight,
and the friend’s girlfriend had two sons, all of whom were
together in the apartment that day. After spending the afternoon
playing cribbage, listening to the radio, and drinking beer with
his friend, White was invited to have dinner at the friend’s
house. It was later agreed that White would spend the night.
At White’s criminal trial, the younger daughter testified
1 The facts are taken primarily from the NHSC’s opinion in State v . White, 145 N.H. 5 4 4 , 765 A.2d 156 (2000).
3 that while she sat with White on a day bed watching television,
White rubbed her breasts, put his hand down her pants, and “stuck
his finger in.” When the daughter told her father what happened,
the father attacked White. During this confrontation, the older
daughter came out of a bedroom crying hysterically. She later
told a doctor that earlier that same day White had touched her
breasts, her vaginal area, and inserted his finger into her
“private.” As the confrontation between the father and the
defendant continued, the father’s girlfriend took all of the
children to a neighbor’s apartment and called the police. After
an investigation, the police told the girlfriend to take the
alleged victims to the hospital for a physical examination, which
she did.
White was charged in the Superior Court with sexual assault.
The complaining witnesses, then aged twelve and eight, testified
that White had sexually assaulted them. White moved in limine to
introduce evidence, through cross-examination, intended to show
that both complaining witnesses had previously made false
accusations of sexual assault against other persons. White
sought to introduce evidence that the two complaining witnesses
had previously accused a neighbor of sexual assault. White
4 further sought to introduce evidence that the twelve-year-old had
falsely accused two other persons of sexual assault. After a
hearing on the motion in limine, the trial court denied White’s
motion, finding that White had failed to show that the prior
allegations were “demonstrably false.” The trial court
prohibited all cross examination concerning the prior allegations
of sexual assault. White was convicted of aggravated felonious
sexual assault against the older child and one count of felonious
sexual assault against each child.
II. Procedural History
White appealed his convictions to the NHSC. In his appeal,
White argued that trial court erred in excluding evidence of the
complaining witnesses’ prior allegations of sexual assault
against other persons. White challenged the trial court’s ruling
under state and federal law. The NHSC held that the trial court
acted within its discretion in excluding White’s proffered
evidence, and that the court had applied the correct standard
under New Hampshire evidentiary law when it required White to
show that the prior accusations of sexual assault were
“demonstrably false,” before they could be inquired into on
cross-examination. Id. at 547-51, 765 A.2d at 159-61. The court
5 ruled that White had not shown that the prior allegations were
“demonstrable false” because he had not demonstrated “clearly and
convincingly” to the trial court that the accusations were false.
State v . White, 145 N.H. 5 4 4 , 553-54, 765 A.2d 156, 163. The
standard employed by the NHSC was first announced in White’s
case. The court’s ruling was based on Rule 608(b) of the New
Hampshire Rules of Evidence.2 See White, 145 N.H. at 5 4 7 , 765
A.2d at 158. The court stated that it did not undertake a
separate federal analysis “[b]ecause federal law does not provide
any additional protection in this area.” White, 145 N.H. at 553-
5 4 , 765 A.2d 163, citing State v . Ellsworth, 142 N.H. 7 1 0 , 7 2 0 ,
790 A.2d 768 (1998) and Clinebell v . Commonwealth, 235 V a . 319,
368 S.E.2d 263 (1988). White filed a petition in the Supreme
2 The text of Rule 608(b) of the New Hampshire Rules of Evidence tracks the language used in the federal rules of evidence. The rule provides in relevant part that:
Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, . . . .
N.H. R. Evid. 608(b).
6 Court of the United States for a writ of certiorari, but the
petition was denied. White v . New Hampshire, 533 U.S. 932
(2000).
On September 1 1 , 2001, White was sentenced in the Superior
Court to serve three consecutive sentences of 10 to 30 years in
the NHSP. The Superior Court’s Sentence Review Division affirmed
that sentence on April 2 3 , 2002. White will not be eligible for
parole until he has served at least 30 years in prison.
Standard of Review
Summary judgment may be granted in a habeas proceeding when
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c); Monroe v . Coplan, N o . Civ. 02-069-B, 2002 WL
31689343 (D.N.H. Nov. 2 2 , 2002); Marro v . Cunningham, N o . 97-652-
JD, 2000 WL 1466114 (D.N.H. Jan 2 1 , 2000). A genuine issue is
one “that properly can be resolved only by a finder of fact
because [it] . . . may reasonably be resolved in favor of either
party.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250
(1986). A material fact is one that affects the outcome of the
7 suit. See id. at 248.
White’s habeas petition was filed after the passage of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L .
N o . 104-132, 110 Stat. 1214 (1996). Under the AEDPA, the federal
courts may not grant a state prisoner a writ of habeas corpus
with respect to any claim that was adjudicated on the merits in
state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary t o , or involved an unreasonable application o f , clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (West 2002). With respect to factual issues,
the AEDPA mandates that a state court’s findings “shall be
presumed to be correct” and the petitioner bears the burden of
disproving factual findings by “clear and convincing evidence.”
28 U.S.C. § 2254(e); DiBenedetto v . Hall, 272 F.3d 1 , 6 (1st Cir.
2001). This presumption of correctness in favor of the state
court’s factual findings “overrides the ordinary rule that, in
summary judgment proceedings, all disputed facts must be
construed in the light most favorable to the nonmoving party.”
Smith v . Cockrell, 311 F.3d 6 6 1 , 668 (5th Cir. 2002).
8 A threshold issue that must be determined is whether White’s
federal constitutional claim was “adjudicated on the merits” in
the state court proceedings within the meaning of 28 U.S.C. §
2254(d). The NHSC found that the trial court applied the proper
evidentiary standard applicable to prior false allegations under
Rule 608(b) of the New Hampshire Rules of Evidence. The NHSC
expressly stated that it did not undertake a separate federal
analysis of the Petitioner’s Sixth Amendment claim finding,
without any supporting analysis, that federal law does not
provide any additional protection in this area. Id. at 5 5 4 , 765
A.2d at 163. The NHSC appeared to cite its decision in State v .
Ellsworth, 142 N.H. at 719-20, 709 A.2d at 774 and the Supreme
Court of Virginia’s decision in Clinebell v . Commonwealth, 368
S.E.2d at 266, as support for its conclusion.
There is support for the proposition that a federal habeas
court may find that the state court adjudicated a petitioner’s
federal claim on the merits if the state court decides the issue
by reference to state court decisions that deal with the federal
issues. See Dibenedetto v . Hall, 272 F.3d at 6. Similar to the
instant case, however, the NHSC concluded in State v . Ellsworth,
also without undertaking a separate federal analysis, that
9 federal law provides no additional protection in this area. See
142 N.H. at 719-20, 709 A.2d at 774. In Clinebell, the other
case seemingly cited by the NHSC as support in White, the Supreme
Court of Virginia found that the Sixth Amendment’s Confrontation
Clause required allowing a defendant to cross-examine a
complaining witness about a prior false accusation if the court
makes a threshold determination that a reasonable probability of
falsity exists. 368 S.E.2d at 266. While the NHSC found that
White could meet the “reasonable probability of falsity”
standard, White, 145 N.H. at 5 5 1 , 765 A.2d at 1 6 1 , the NHSC did
not use the standard that Clinebell found constitutionally
mandated choosing instead to rely on its New Hampshire
evidentiary rule requiring the defendant to show “clearly and
convincingly” to the trial court that a prior accusation was
false before permitting the defendant any cross-examination about
those prior accusations. Id. at 5 4 8 , 765 A.2d at 159.
In light of the NHSC’s express decision not to undertake a
separate federal analysis of White’s federal claim, and the
NHSC’s apparent reliance on state authorities that do not support
its perfunctory dismissal of analysis of federal law, this Court
finds that White’s federal constitutional claim was not
10 adjudicated on the merits in the state court. C f . Ylst v .
Nunnemaker, 501 U.S. 7 9 7 , 802-03 (1991) (recognizing that when a
state court issues “an unexplained order (by which we mean an
order whose text or accompanying decision does not disclose the
reason for the judgment) . . . [a]ttributing a reason is both . .
. difficult and artificial); see also, Brittany Glidden, When the
State is Silent: An Analysis of AEDPA’s Adjudication Requirement,
27 N.Y.U. Rev. L . & Soc. Change 1 7 7 , 208-10 (2001-2002) (arguing
that Congress intended to preserve a defendant’s right to one
full adjudication of a federal constitutional claim when it
passed the AEDPA). Since this Court finds that there was no
adjudication of White’s federal claim in the state court
proceedings to which this Court should defer, under First Circuit
precedent this Court is required to give White’s federal
constitutional claim de novo review. See Fryar v . Bissonnette,
318 F.3d 339 (1st Cir. 2003); DiBenedetto, 272 F.3d at 6; Fortini
v . Murphy, 257 F.3d 3 9 , 47 (1st Cir. 2001). 3 The Supreme Court’s
decision in Early v . Packer, 537 U.S. 3 , --, 123 S . C t . 3 6 2 , 365
3 Notwithstanding this Court’s finding that White’s federal constitutional claim was not adjudicated on the merits in the state courts, the Court presumes that the state court’s factual determinations were correct and applies them in consideration of White’s federal claim. See DiBenedetto, 272 F.3d at 7 , n.1.
11 (2002), does not require a contrary conclusion. See Ellsworth v .
Warden, N.H. State Prison, –- F.3d --, 2003 WL 21374024 at * 2
n.1 (Early stands only for the proposition that deference does
not depend on the state court citing federal case l a w ) .
As this Court has found that the state courts did not
adjudicate White’s federal constitutional claim on the merits,
because it failed to explain how it reached its conclusion or
cite any authority that supports i t , the Court applies the pre-
AEDPA standard of habeas review. See Washington v . Schriver, 255
F.3d 4 5 , 55 (2d Cir. 2001) (assuming arguendo that the
petitioner’s constitutional claim was not adjudicated on the
merits and applying the pre-AEDPA standard or review). “Before
1996, this Court held that a federal court entertaining a state
prisoner’s application for habeas relief must exercise its
independent judgment when deciding both questions of
constitutional law and mixed constitutional questions (i.e.,
application of constitutional law to fact).” Williams v . Taylor,
529 U.S. 3 6 2 , 400 (2000). Accordingly, this Court exercises its
independent judgment in considering the merits of White’s federal
constitutional claim.
12 Discussion
I. Constitutional Right to Confront Witnesses
The Sixth Amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him . . . .” U.S. Const. amend. V I . The Sixth Amendment right
to confront witnesses is a fundamental right secured for
defendants in state and federal criminal proceedings. Smith v .
Illinois, 390 U.S. 129, 129 (1968); Pointer v . Texas, 380 U.S.
400, 403 (1965). A primary interest secured by the Confrontation
Clause is the right of the accused to cross-examine adverse
witnesses. Douglas v . Alabama, 380 U.S. 415, 418 (1965);
Pointer, 380 U.S. at 405. The right of cross-examination is a
“functional” right designed to promote reliability in the truth-
finding functions of a criminal trial. Kentucky v . Stincer, 482
U.S. 7 3 0 , 736 (1987); see also, Pointer, 380 U.S. at 405
(“certainly no one experienced in the trial of lawsuits, would
deny the value of cross-examination in exposing falsehood and
bringing out the truth in the trial of a criminal case”).
Despite the central importance of a defendant’s right of
cross-examination of adverse witnesses, the Supreme Court has
13 found that “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v . Van Arsdall, 475 U.S. 673, 679
(1986). The Court has stated generally that “the Confrontation
Clause guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v . Fensterer,
474 U.S. 1 5 , 20 (1985) (emphasis in original). Still, Supreme
Court precedent makes clear that a criminal defendant retains the
right to conduct reasonable cross-examination under the Sixth
Amendment. Olden v . Kentucky, 488 U.S. 2 2 7 , 231 (1988). The
Court has found that a Confrontation Clause issue is presented
when a defendant alleges that cross-examination restrictions
imposed by law or by the trial court “effectively emasculate the
right of cross-examination itself.” Smith v . Illinois, 390 U.S.
at 131; Kentucky v . Stincer, 482 U.S. at 737; Delaware v .
Fensterer, 474 U.S. at 1 8 . The instant case requires the Court
to determine whether the New Hampshire state courts imposed an
14 unreasonable restriction on White’s right to cross-examination.
II. Distinction Between General Attacks on Credibility and Attacks Directed Toward Revealing Possible Biases, Prejudices or Ulterior Motives
The Respondent contends that while cross-examination
directed towards exposing a witness’ possible bias or motive is
constitutionally protected, cross-examination intended merely as
a general attack on the witness’ credibility is not. Respondent
argues that in the instant case White merely intended to cross-
examine the complaining witnesses pertaining to their prior
allegations of sexual assault to attack their credibility
generally, and thus the Confrontation Clause was not implicated.
According to the Respondent, “[n]o matter how clear it is that a
complainant made prior false accusations, the Sixth Amendment
does not require that evidence of this fact be admitted, unless
the evidence is probative of a material issue such as bias or
motive.” Mem. in Support of Mot. for Summ. J. at 6.
In his objection, White contends that his accusers’ pattern
of similar false allegations about the very type of offense that
they have accused him of committing supports an inference that
the accusers had “some motive to lie.” See Pet. Resp. to Mot.
for Summ. J. at 4 . White further contends that since the
15 probative value of evidence that a complaining witness has
falsely accused others of committing offenses similar to the
offense that the defendant is accused of committing clearly
exceeds the probative value of more generic instances of
dishonesty. Id. at 7 .
The distinction between cross-examination to attack a
witness’ credibility generally and cross-examination as a
particular attack on a witness’ credibility was discussed in
Davis v . Alaska, 415 U.S. 308 (1974). There, the Supreme Court
found that a general attack on credibility, as through
introduction of evidence of a prior conviction, intends to
provide the jury with “a basis to infer that the witness’
character is such that he would be less likely than the average
trustworthy citizen to be truthful in his testimony.” Id. at
316. In contrast, the Court found that a defendant may make a
particular attack on a witness’ credibility through “cross-
examination directed toward revealing possible biases,
prejudices, or ulterior motives of the witness as they may relate
directly to the issues or personalities in the case at hand.”
Id. The Court subsequently stated in a later case that “a
criminal defendant states a violation of the Confrontation Clause
16 by showing that he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical
form of bias on the part of the witness, and thereby ‘to expose
to the jury the facts from which jurors . . . could appropriately
draw inferences relating to the reliability of the witness.”
Delaware v . Van Arsdall, 475 U.S. at 6 8 0 , quoting Davis, 415 U.S.
at 318.
The parties have not identified any case, and this Court is
not aware of any, where the Supreme Court has found that a
defendant’s constitutional right to cross-examine witnesses
requires the introduction of evidence intended to impeach a
witness’ general credibility. This Court finds, exercising its
independent judgment, that the Supreme Court’s Confrontation
Clause jurisprudence, emphasizing the fundamental role of cross-
examination in assuring the reliability of fact finding,
reasonably extends to cross-examination of adverse witnesses
about a pattern of allegedly false accusations against others of
the type of offense of which the defendant is accused. See e.g.,
Pointer, 380 U.S. at 405 (“There are few subjects, perhaps, upon
which this Court and other courts have been more nearly unanimous
than in their expressions of belief that the right of
17 confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is this
country’s constitutional goal”); Smith, 390 U.S. at 131 (“we have
repeatedly stated that ‘[a] denial of cross-examination without
waiver . . . would be constitutional error of the first magnitude
and no amount of showing of want of prejudice would cure it.’”);
California v . Green, 399 U.S. 149, 158 (1970)(recognizing that
cross-examination is the “‘greatest legal engine ever invented
for the discovery of truth.’”); Chambers v . Mississippi, 410 U.S.
284, 295 (1973) (finding that “[t]he right of cross-examination
is more than a desirable rule of trial procedure,” rather “[i]t
is implicit in the constitutional right of confrontation, and
helps assure the ‘accuracy of the truth-determination
process.’”); Kentucky v . Stincer, 482 U.S. at 736 (“The
opportunity for cross-examination, protected by the Confrontation
Clause, is critical for ensuring the integrity of the fact-
finding process.”).
In Davis v . Alaska, the Supreme Court found that “[c]ross-
examination is the principal means by which the believability of
a witness and the truth of his testimony are tested.” 415 U.S.
at 316. The Court continued, “[s]ubject always to the broad
18 discretion of a trial judge to preclude repetitive and unduly
harassing interrogation, the cross-examiner is not only permitted
to delve into the witness’ story to test the witness’ perceptions
and memory, but the cross-examiner has traditionally been allowed
to impeach, i.e., discredit the witness.” Id. (emphasis added).
Contrary to the Respondent’s contention, the Davis Court did not
state a bright line rule that a criminal defendant has no
protection under the Sixth Amendment for cross-examination
intended to attack a witness’ credibility generally. Rather, the
Court held, under the facts of that case, that the defendant’s
Sixth Amendment rights had been violated because the trial court
denied the defendant an opportunity to show the existence of a
bias on the part of an adverse witness, which could have affected
the accuracy and truthfulness of his testimony. See Davis, 415
U.S. at 317-18. It is the opinion of this Court that the Supreme
Court has reserved judgment on the extent of constitutional
protection of cross-examination intended to impeach a witness’
general credibility.4
4 The Court recognizes that there are decisions from other federal circuits courts that have found that there is a dividing line between constitutionally required cross-examination to expose the witnesses’ bias, prejudice or motive and cross- examination intended as a general attack on the witness’
19 This Court finds that Justice Stewart’s concurrence in
Davis, emphasizing that “the Court neither holds nor suggests
that the Constitution confers a right in every case to impeach
the general credibility of a witness through cross-examination
about his past delinquency adjudications or criminal
convictions,” see Davis, 415 U.S. at 3 2 1 , does not foreclose
White’s federal constitutional claim for two reasons. First,
Justice Stewart’s concurrence was not the opinion of the Court.
Second, it is plain that the type of evidence Justice Stewart
discussed –- cross-examination about past delinquency
adjudications or criminal convictions to impeach the general
credibility of a witness -- is not necessarily of the same
probative value as cross-examination of a complaining witness
pertaining to a pattern of false accusations against others of
similar offenses. Where, as here, the defendant has evidence
that a complaining witness has engaged in a pattern of making
similar allegations against others, and where the state court has
credibility. See e.g., Redmond v . Kingston, 240 F.3d 5 9 0 , 593 (7th Cir. 2001); Quinn v . Haynes, 234 F.3d 8 3 7 , 845 (4th Cir. 2000), Boggs v . Collins, 226 F.3d 7 2 8 , 739-40 (6th Cir. 2000), United States v . Bartlett, 856 F.2d 1071, 1087-89 (8th Cir. 1988); Hughes v Raines, 641 F.2d 7 9 0 , 793 (9th Cir. 1981). However, none of those cases involved an alleged pattern of prior false allegations of similar offenses against others.
20 found that the defendant has shown that those prior allegations
were false to a reasonable probability, it strains reason to
suggest that such evidence is not probative of whether the
testimony of the complaining witness is credible.
Notwithstanding the open issue of law of constitutional
protection of cross-examination intended to attack a witness’
general credibility, here White argues that a pattern of prior
false allegations by the complaining witnesses may be indicative
of some motive to testify falsely. Viewed as such, White’s
federal constitutional claim may be reconciled with the Supreme
Court’s existing cases. And while White has not articulated a
particular motive theory, that should not be a rigid bar to
cross-examination. See Burr v . Sullivan, 618 F.2d 583, 587 (9th
Cir. 1980) (rejecting the argument that the defense is required
to articulate a precise theory of bias before being permitted to
cross-examine witnesses about earlier criminal proceedings); see
also, Alford v . United States, 282 U.S. 6 8 7 , 692 (1931) (finding
that cross-examination “is necessarily exploratory; and the rule
that the examiner must indicate the purpose of his inquiry does
not, in general apply”). The NHSC recognized the potential of
White’s evidence to expose the complaining witness’ motive to
21 testify false. Indeed, the NHSC found in its opinion that “the
prior allegations of sexual assault are not probative of the
victims’ motives because . . . the defendant has failed to
demonstrate clearly and unconvincingly that the prior allegations
are false.” White, 145 N.H. at 554-54, 765 A.2d at 163. Had
White been allowed a reasonable opportunity to explore the prior
allegations of sexual assault a specific motive might have become
readily apparent. The evidence of a pattern of prior allegations
of similar offense surely could have affected the jury’s
perception of the reliability of the complaining witnesses. See
Davis, 415 U.S. at 318 (“defense counsel should have been
permitted to expose to the jury the facts from which, the jurors,
as the sole triers of fact and credibility, could appropriately
draw inferences relating to the reliability of the witness”).
While it may have been appropriate for the trial court to
prohibit White from introducing extrinsic evidence to impeach the
complaining witnesses, White should have been permitted to expose
to the jury, through cross-examination about the prior
allegations of sexual assault, evidence which may have severely
undermined the complaining witnesses’ credibility. See United
States v . Abel, 469 U.S. 4 5 , 52 (1984) (“The ‘common law of
22 evidence’ allowed the showing of bias by extrinsic evidence,
while requiring the cross-examiner to ‘take the answer of the
witness’ with respect to less favored forms of impeachment.”);
see also, Montana v . Egelhoff, 518 U.S. 3 7 , 43-44 (1996) (a state
evidentiary rule violates the due process clause if it offends a
fundamental principle of justice developed under the common l a w ) .
It appears to this Court that this is an extreme case where the
state court’s restriction on the defendant’s right to cross-
examination was manifestly unreasonable and overbroad. See
United States v . Gomes, 177 F.3d 7 6 , 81-82 (1st Cir. 1999)
(finding that claims of evidentiary error under the Confrontation
Clause are only tenable where the restriction is manifestly
unreasonable or overbroad).
The First Circuit’s en banc opinion in Ellsworth, although
not directly controlling, supports the validity of White’s
federal constitutional claim. In Ellsworth, a case where the
defendant was charged with sexually assaulting a minor, the First
Circuit found that the defendant raised a viable claim under
Brady v . Maryland, 373 U.S. 83 (1963), where the prosecution
failed to turn over a youth center intake note suggesting that
the complaining witness had made false accusations of sexual
23 abuse against his caretakers in the past. Ellsworth, 2003 WL
21374024 at * 3 . The First Circuit found that the document,
although not itself admissible, was exculpatory. Id. The court
found that document could have led the defendant to persons who
could testify as to the circumstances of the allegations and the
basis for believing them to be false. Id. The court found that,
If strong evidence of a prior false accusation exists, it would be very powerful. The setting and type of alleged lie are similar, so this evidence would be far more potent than a random unrelated episode of untruthfulness by [the complaining witness] . . . . Coupled with [proof of the complaining witness’ instability], evidence that the [complaining witness] had falsely accused caretakers before could easily have created the reasonable doubt necessary to acquit Ellsworth in what was otherwise largely a credibility contest.
Id. at * 4 . The court declined to resolve whether the New
Hampshire standard for admission of evidence of a complaining
witness’ prior false accusations, that the allegations be
“clearly and convincing” false, is unconstitutional. Id. at * 5 .
Under our system of criminal justice the prosecution bears
the burden of proof not the defendant. In re Winship, 397 U.S.
358, 364 (1970). An evidentiary rule that requires a defendant
to demonstrate to the trial court “clearly and convincingly” that
a complaining witness made prior false accusations of a similar
24 offense before the defendant may have any opportunity to cross-
examine the complaining witness about those prior accusations
creates an unduly high barrier against the defendant’s
presentation of probative evidence.5 The nature of the
evidentiary burden imposed here is particularly onerous where the
defendant has evidence that the complaining witness has made
multiple prior accusations of similar offenses and the state
court has found those accusations false to a reasonable
probability. The finder of fact must be entrusted to be able to
determine the credibility of the complaining witness under such
circumstances. The stated purpose behind New Hampshire’s
evidentiary rule, namely preventing a “trial within a trial,” see
White, 145 N.H. at 5 4 8 , 765 A.2d at 159, is disproportionate to
the purpose that it is intended to serve as the trial court could
have constrained White’s presentation of evidence to the
complaining witnesses’ testimony. Because New Hampshire’s
exclusionary rule is disproportionate to its intended purpose, it
violates the defendant’s constitutional rights. See United
5 In a somewhat analogous context, the Supreme Court found that a state law requiring a criminal defendant to stand trial unless he proves to the trial court by clear and convincing evidence that he is incompetent violated the due process clause. Cooper v . Oklahoma, 517 U.S. 3 4 8 , 368-69 (1996).
25 States v . Scheffer, 523 U.S. 303, 308 (1998); Michigan v . Lucas,
500 U.S. 145, 151 (1991); Rock v . Arkansas, 483 U.S. 4 4 , 55-56
(1987).
In light of the foregoing, this Court finds that where White
presented evidence that the complaining witnesses engaged in a
pattern of making false allegations of similar offenses against
others, and where the state court found that White demonstrated
the falsity of those prior allegations to a reasonable
probability, it was unreasonable under the Sixth Amendment for
the state court to deny White any opportunity to cross-examine
the complaining witnesses regarding those prior accusations at
his criminal trial. Therefore, the Respondent’s motion for
summary judgment is denied. The Court further finds that the
state court’s constitutional error was not harmless because there
is no dispute that the testimony of the complaining witnesses was
critical to the prosecution’s case, and because the evidence
sought to be introduced would not have been cumulative. See Van
Arsdall, 475 U.S. at 648 (finding that constitutional challenges
pertaining to the improper denial of a defendant’s opportunity to
impeach a witness for bias is subject to harmless error
analysis). Therefore, the Court grants White’s petition for a
26 writ of habeas corpus.
Conclusion
For the reasons set forth above, Respondent’s motion for
summary judgment (document n o . 6 ) is denied. The petition for a
writ of habeas corpus (document n o . 1 ) is granted. The
Respondent is ordered to release White unless the state vacates
his convictions and affords him a new trial within 90 days.
SO ORDERED.
James R. Muirhead United States Magistrate Judge Date: July 1 1 , 2003
cc: David M . Rothstein, Esq. Nicholas Cort, Esq.