Miller v. State
| Decision Date | 06 September 1989 |
| Docket Number | No. 19166,19166 |
| Citation | 779 P.2d 87,105 Nev. 497 |
| Parties | Dwight Wayne MILLER, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
This appeal presents the question of whether defense counsel may cross-examine, for impeachment purposes, an alleged sexual assault victim concerning prior fabricated rape accusations. We conclude that under certain conditions, such a practice is permissible. However, for reasons discussed below and under the facts of this case, we conclude that it is not appropriate to reverse and remand to the trial court to give Miller an opportunity to cross-examine the complaining witness in such a fashion. Accordingly, we affirm.
On December 7, 1987, the complaining witness reported to a school counselor that Miller had sexually assaulted her. The police were subsequently notified and officers interviewed her. Based upon information obtained from the complaining witness and other pertinent evidence, Miller was arrested on December 8, 1987. On December 31, 1987, Miller was charged by information with sexual assault, a violation of NRS 200.366, and battery with intent to commit sexual assault, a breach of NRS 200.400. At a later arraignment, Miller entered a plea of not guilty.
Miller's jury trial was scheduled to commence on March 15, 1988. Prior to jury selection, the State requested that the trial judge disallow defense counsel's cross-examination of the complaining witness concerning prior allegations of rape or molestation. The State admitted that in 1986 the complaining witness reported that her uncle had molested her. The State also noted that although the Attorney General's office investigated the allegations, charges were not filed. 1 The State argued that under such circumstances, the victim's prior accusation was not relevant to the question of her credibility and current sexual assault charges.
After reviewing, apparently for the first time, the Humboldt County Sheriff's Office file concerning the alleged incident between the complaining witness and her uncle, defense counsel argued that in reality, the complaining witness had twice accused her uncle of sexually abusing her or attempting to sexually abuse her. When the trial judge asked defense counsel whether he had other evidence regarding the victim's prior accusations, he responded that the Humboldt County Sheriff's file was the only information he had. As a result, the district court ruled that any cross-examination of the complaining witness concerning prior rape or sexual abuse allegations was precluded by NRS 50.090, 2 Nevada's rape shield statute.
Eventually Miller was tried and convicted of sexual assault. 3 He was sentenced to life imprisonment with the possibility of parole after five years. On appeal, Miller alleges, inter alia, that the lower court abused its discretion in denying Miller the opportunity to cross-examine the complaining witness regarding prior sexual abuse accusations which may have been false.
At the outset, it is important to recognize in a sexual assault case that the complaining witness' credibility is critical and thus an alleged victim's prior fabricated accusations of sexual abuse or sexual assault are highly probative of a complaining witness' credibility concerning current sexual assault charges. See Little v. State, 413 N.E.2d 639, 643 (Ind.App.1980). As Professor Wigmore explains:
Occasionally is found in woman complainants, testifying to sex offenses by men, a dangerous form of abnormal mentality--dangerous here, because it affects testimonial trustworthiness while not affecting other mental operations. It consists in a disposition to fabricate irresponsibly charges of sex offenses against persons totally innocent.... Sometimes it is associated with unchaste conduct in the witness, sometimes not. But its nature is well known to psychiatrists and is recognizable by them. Testimony to its existence in an individual should always be receivable.
3A Wigmore On Evidence § 934a (Chadbourn rev. ed. 1970).
We next conclude, along with a number of sister states, 4 that prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute "previous sexual conduct" for rape shield purposes. Specifically, in such cases, the defendant is not attempting to inquire into the complaining witness' sexual history to reveal unchaste character. On the contrary, the defendant seeks to prove for impeachment purposes that the complaining witness has, in the past, made false accusations concerning sexual behavior. See Clinebell v. Com., 235 Va. 319, 368 S.E.2d 263, 264 (1988).
We hold, therefore, that in a sexual assault case, NRS 50.090 does not bar the cross-examination of a complaining witness about prior false accusations. Accordingly, under conditions specified hereafter, defense counsel may cross-examine a complaining witness about previous fabricated accusations, and if the witness denies making the allegations, counsel may introduce extrinsic evidence to prove that, in the past, fabricated charges were made. See Id., 368 S.E.2d at 266. See also People v. Mikula, 84 Mich.App. 108, 269 N.W.2d 195, 198-199 (1978).
We recognize that our ruling impinges on the constraints imposed by NRS 50.085(3), Nevada's collateral evidence rule. 5 Specifically, NRS 50-085(3) permits cross-examination of a witness into specific instances of conduct. However, if the witness denies the past conduct, extrinsic evidence to disprove the denial is generally not admissible. See Moore v. State, 96 Nev. 220, 224-225, 607 P.2d 105, 107-108 (1980). To the extent that our holding transcends the limitations of NRS 50.085(3), we carve out an exception for sexual assault cases. 6
Such an exception is in pari ratione with this court's current position regarding sexual assault cases and the admissibility of extrinsic impeachment evidence against defendants. Specifically, in Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988), we held that, under certain circumstances, NRS 50.085(3) does not bar the prosecution from introducing extrinsic misconduct evidence against defendants in sexual assault cases. Id., 765 P.2d at 1146.
As a prerequisite to admitting a complaining witness' prior sexual assault and sexual abuse accusations and corroborative extrinsic evidence proving the falsity thereof, a threshold inquiry must establish both the fact of the accusations and the falsity thereof even before defense counsel launches into cross-examination. See Covington v. Alaska, 703 P.2d 436, 442 (Alaska 1985); Clinebell, 368 S.E.2d at 266. Thus, if a defendant in a sexual assault case proposes to cross-examine the complaining witness about prior false sexual assault or sexual abuse allegations and introduce corroborative evidence, he must, prior to such questioning, file written notice of his intent. The trial court must then order a hearing, outside the presence of the jury, to determine the propriety of such questioning and the admissibility of corroborative evidence. In making such a determination, the defendant must establish, by a preponderance of the evidence, that (1) the accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial. Cf. Berner, 104 Nev. at 697, 765 P.2d at 1145. 7 If the defendant satisfies these three conditions, the trial court will authorize cross-examination of the complaining witness concerning the alleged false accusations. The defendant may thereafter present extrinsic evidence of the false accusations only if the complaining witness denies or fails to recall having made such accusations.
Application of the foregoing standard to the instant case reveals that the trial court correctly precluded cross-examination into past allegations of sexual abuse. Specifically, although the complaining witness clearly made prior accusations, Miller failed to make the requisite evidentiary showing to establish that the prior allegations were in fact false. More specifically the only available evidence of alleged falsity was a number of vague references to the Attorney General's motivation for not going forward with the complaining witness' prior sexual abuse allegations. Accordingly, it was proper to deny cross-examination.
We have carefully considered other issues raised on appeal but not discussed herein and conclude that they lack merit. Accordingly, we affirm the judgment entered below.
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