On Wednesday CAAF granted review in an Army case that questions whether it was error for the military judge to prohibit the defense from introducing evidence that the alleged victim previously made a false accusation of sexual assault:

No. 16-0705/AR. U.S. v. Sean R. Erikson. CCA 20150130. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE THAT THE VICTIM PREVIOUSLY MADE A FALSE ACCUSATION OF SEXUAL CONTACT AGAINST ANOTHER SOLDIER.

II. CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

III. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

Briefs will be filed under Rule 25 on issue I only.

(emphasis added). No opinion is available on the Army CCA’s website (indicating that the court summarily affirmed the findings and sentence).

Erikson is also a Dalmazzi (CAAFlog case page) trailer – one of two granted on Wednesday that brings the total to 16 trailer cases.

CAAF also granted review of another McClour (CAAFlog case page) trailer on Wednesday, bringing the total to 6 trailer cases.

8 Responses to “CAAF to review exclusion of evidence of a prior false allegation”

  1. Scott says:

    A prior false accusation certainly seems extremely relevant, at the very least as a subject for cross of the victim. Shame there is no ACCA opinion – very curious what the circumstances were. 

  2. Bill Cassara says:

    So it is ok to argue that the accused has a propensity to commit sex crimes, but not ok to argue that the alleged victim has a propensity to make false allegations. 

  3. Zachary D Spilman says:

    That’s about the state of things, Bill Cassara

    Though you might be interested in reading Edward J. Imwinkelried, Should Rape Shield Laws Bar Proof That the Alleged Victim Has Made Similar, False Rape Accusations in the Past: Fair Symmetry with the Rape Sword Laws, 47 The U. of Pac. L. Rev. 709 (2015-2016) (available here).

     
  4. Dew_Process says:

    As an aside, I suspect that few, other than Admiral Cloudesley Shovell, perhaps Professor Fidell and myself, recall when “Ed Imwinkelried” was an Army JAG . . . . something that stayed with him if you look at his numerous legal publications.
     
    The article that Zach cites from Prof. Imwinkelried, is well worth the read especially if one is dealing with a prior false complaint issue. For another look at this issue, differing from Imwinkelried’s approach, see Prof. Rothstein’s article on impeaching untruth prior acts, available HERE.

  5. stewie says:

    The problem is what equals evidence of a “False rape allegation?”
     
    An acquittal? A declination to prosecute? Someone testifying that a claim was made and it wasn’t true?

  6. Joseph Wilkinson says:

    The problem is what equals evidence of a “False rape allegation?”  An acquittal? A declination to prosecute? Someone testifying that a claim was made and it wasn’t true?
     
    Well, what constitutes evidence of a “prior act for the sake of propensity” under rule 413?  Somebody gets up and says so, and says “she never reported it until now because she was scared/felt embarrassed/couldn’t be bothered, etc.”   No conviction, prosecution, investigation, etc. is required (or at least that’s how it was the last time I tried one of these).   So if you are looking for symmetry, then there is no problem at all; you let it all in.  

  7. Zachary D Spilman says:

    stewie makes a fair point. The existence of a prior (and unrelated) accusation that is unproven or wasn’t prosecuted isn’t really proof of anything, and any meaningful inquiry into the facts of the prior accusation (say, by calling the person accused to testify about their alibi) is well into the trial-within-a-trial realm.

    But the granted issue addresses “evidence that the victim previously made a false accusation.” I’m going to presume (or at least hope) that CAAF wouldn’t grant review unless the excluded evidence clearly shows the prior accusation to be false.

  8. DCGoneGalt says:

    So, if I may summarize:
     
    413 allows virtually any allegation against the accused to come in as long as it isn’t quasi-BRD false.
     
    Prior false allegations by a complainant are only admissible if they are quasi-BRD true and even then may be kept out if they are denied by the complainant because they may create a trial-within-a-trial.