Thе defendant, David Aldrich, appeals his conviction, following a jury trial in Superior
The record supports the fоllowing facts. The defendant was charged with nine counts of aggravated felonious sexual assault and three counts of incest, based upon events occurring between 1995 and 2002. The three counts of incest and seven of the nine counts of aggravated felonious sexual assault were dismissed. The remaining two counts of aggravated felonious sexual assault concerned allegеd conduct from July 1998 to July 1999 and July 2000 to May 2001, when the victim was older than thirteen but younger than sixteen.
The defendant filed a motion in limine requesting, among other things, permission to cross-examine the victim about prior allegedly false allegations of sexual assault. At a pretrial motions hearing, the defendant proffered that, in several interviews with police, the victim made allegations of sexual assault or other misconduct against A.A., V.A., G.B., and M.G. According to the defendant, “[e]ach man has denied these false allegations,” and, “at least one witness, [E.W.], contradicts [the victim’s] allegations of sexual assault by [G.B.].” The defendant argued that New Hampshire Rule of Evidence 608(b) and his state and federal constitutional rights to confrontation entitled him to this cross-examination. See U.S. Const. amends. VI, XIV; N.H. Const. pt. I, art. 15.
The State argued that “the probative value of these ‘false accusations’ is outweighed by the danger of misleading the jury or in the alternative, confusion of the issues,” and that “the defendant has failed to demonstrate that the prior allegations were indeed false.” The State explained that the victim never recanted the allegations and there was no evidence before the court showing that the allegations were false.
The trial court granted the defendant’s motion in part and denied it in part. The court allowed the defendant to cross-examine the victim about her allegations against A.A., stating that “such cross-examination is sufficiently probative given the unique facts of this case and not outweighed by substantial prejudice,” and that “[t]his is particularly so given the undisputed fact that the [victim] falsely testified in a priоr case regarding [A.A.].” However, the court denied the defendant’s request to cross-examine the victim about her allegations against V.A., G.B., and M.G., ruling that “[t]he factors set forth in
[State v. Miller,
On appeal, the defendant argues that the court misapplied New Hampshire Rules of Evidence 608(b) and 408 and violated his state and federal constitutional rights to confrontation. See U.S. Const. amends. VI, XIV; N.H. Const. pt. I, art. 15.
We first hold that the trial court correctly applied the evidentiary rules. A trial court has broad discretion to determine the scope of cross-examination or the admissibility of evidence, and we will not upset its ruling absent an unsustainable exercise of discretion.
State v. Kornbrekke,
New Hampshire Rule of Evidence 608(b) provides, in pertinent part:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of 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’ character for truthfulness or untruthfulness ....
Under this rule, we consider whether the trial court accurately gauged the probative value of the defendant’s proposed line of cross-examination.
See Kornbrekke,
(1) whether the testimony of the witness is crucial or unimportant; (2) the extent to which the evidence is probative of truthfulness or untruthfulness; (8) the extent to which the evidence is also probative оf other relevant matters; (4) the extent to which the act of untruthfulness is connected to the case; (5) the extent to which the circumstances surrounding the specific instances of conduct are similar to the circumstances surrounding the giving of the witness’s testimony; (6) the nearness or remoteness in time of the specific instances to trial; (7) the likelihood that the alleged specific-instanсes conduct in fact occurred; (8) the extent to which specific-instances evidence is cumulative or unnecessary in light of other evidence already received on credibility; and (9) whether specific-instances evidence is needed to rebut other evidence concerning credibility.
Miller,
Although Rule 608(b) permits a cross-examinеr to inquire into conduct that is probative of the witness’s character for truthfulness or untruthfulness, the examiner must generally “take the answer as the witness gives it.”
Miller,
We have observed that, “[w]hethеr the trial court erred in denying cross-examination and whether it erred in excluding extrinsic evidence are distinct inquiries,” and that “[b]oth are separate and distinct from the question whether the defendant’s constitutional rights to confrontation mandated such cross-examination.” Id. Here, the defendant argues that the trial court erred in denying cross-examination and that his constitutional confrontation rights mandated such cross-examinаtion; he does not assert that the court erred by excluding extrinsic evidence.
The trial court determined that the
Miller
factors “weigh against permitting . . . cross-examination” about the three prior accusations at issue. The defendant
The defendant also asserts that “the number of men [the victim] accused of sexual assault or misconduct constituted some evidence that the accusations were false.” The defendant cites three cases to support this assertion:
People v. Mardlin,
In
Mardlin
and
Woods
— both criminal cases — it was held that evidence of the defendants’ other alleged bad acts was admissible to show that the acts for which they had been charged were not accidental. In
Mardlin,
an arson case, the prosecution introduced evidence showing “that [the] defendant had been associated with four previous home or vehicle fires — each of which,” like the home fire underlying his arson charge, “also involved insurance claims and arguably benefited [the] defendant in some way.”
Mardlin,
In
Mintz,
a civil negligence case, the defendant was allowed to cross-examine the plaintiff about two other negligence claims, one arising from a “similar accident” that occurred “about two years before” and another in which the plaintiff “had fallen in a beauty parlor.”
Mintz,
The defendant argues:
Just as it would be unusual — but not impossible — for an individual to suffer three injuries caused by the negligence of others, to have seven children pass away due to naturally-caused respiratory distress, or to have five properties succumb to accidental fire, it would also be unusual — but not impossible — for an individual to be subjected to sexual assaultor misconduct at the hands of five men, all while a child or young adult.
We disagree with the defendant’s comparison. The evidentiary principle relied upon in Mardlin, Woods, and Mintz is known as the “doctrine of chances.” Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding A Non-Character Theory of Logical Relevance, the Doctrine of Chances, 40 U. Rich. L. Rev. 419, 437 (2006). Under this doctrine, “the proponent offers the evidence to establish the objective improbаbility of so many accidents befalling [a party] or the [party] becoming innocently enmeshed in suspicious circumstances so frequently.” Id.
This doctrine is inapplicable to the evidentiary issue in this case. Here, the defendant asserts that the multiple accusations are “some evidence” that one or more of the underlying sexual assaults did not, in fact, occur. See N.H. R. Ev. 608(b). As applied in Mardlin, Woods, and Mintz, however, the doctrine presupposes that the prior instances occurred, and the proponents of the evidence sought to rebut the contention that the conduct at issue was accidental. Because the defendant is not offering the victim’s multiple accusations to rebut an assertion that the conduct with which the defendant was charged was accidental, those cases are inapposite.
Moreover, the defendant’s argument rests upon the premise that it is unlikely for someone to be a victim of repeated acts of sexual assault by multiple perpetrators. However, there is no support for this premise in the record. Indeed, the State cites literature suggesting that the opposite is true — that it is, in fact, common for child victims of sexual assault to be revictimized. See Kellogg & Hoffman, Child Sexual Revictimization by Multiple Perpetrators, 21 Child Abuse & Neglect 953 (1997).
Because the defendant did not proffer sufficient evidence of the falsity of the accusations, his proposed cross-examination about them is not probative of the victim’s character for untruthfulness.
See
N.H. R. Ev. 608(b);
Kornbrekke,
We now turn to the defendant’s argument that “[precluding the proposed cross-еxamination violated [his] confrontation rights under Part I,
Article 15 of the New Hampshire Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.” We first address the defendant’s claim under the State Constitution and rely upon federal law only to aid our analysis.
State v. Ball,
Part I, Article 15 of the New Hampshire State Constitution provides, in pertinent part: “Every subject shall have a right to produce all proоfs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel.” N.H. Const. pt. I, art. 15. We have held that incident to this right is the opportunity to impeach a witness’s credibility through cross-examination.
Miller,
Here, the court allowed the defendant to attack the victim’s credibility in several respects. At trial, he cross-examined her about having previously lied in court in a different case, about lying that she was a virgin until she turned eighteen, and about allegedly lying that she had been pregnant. He also established inconsistencies in the victim’s statements to police, teachers, a guidance counselor, and New Hampshire and Vermont social workers. Additionally, the court allowed the defendant to ask the victim about her allegedly false accusation against A.A. Thus, the court did not prevent the defendant from inquiring into the victim’s character for truthfulness or untruthfulness.
Moreover, the State Constitution does not require the trial court to permit cross-examination about prior allegations unless the defendant shows that such allegations were demonstrably false, which we have held to mean clearly and convincingly false.
See State v. Abram,
Next, we address the defendant’s argument that the trial court violated the Federal Confrontation Clause.
See
U.S. CONST, amends. VI, XIV. “The Supreme Court has declared cross-examination an essential constitutional right for a fair trial, subject to reasonable limits reflecting concerns such as prejudice, confusion or delay incident to marginally relevant evidence.”
White v. Coplan,
Concerning the first factor, we recognize the importance of the evidence that the defendant sought to elicit. If at trial the defendant could have shown, on cross-examination, that the victim had previously lied about being sexually assaulted, that evidence could have “suggest[ed] a pattern,” which in turn could have “suggest[ed] an underlying motive” of the victim to lie about the defendant’s conduct in this case.
Id.
Here, however, the defendant proffered only inconclusive evidence of the falsity of the other three prior accusations. It is therefore highly unlikely that, at trial,
The other factors do not weigh in the defendant’s favor. Concerning the second, the trial court’s “ban” on cross-examination was not absolute: the defendant was permitted to ask the victim about her prior accusation against A.A.
Id.
Concerning the third, the Supreme Court has recognized the importance of the reasons that the trial court gave to support its ruling — namely, preventing harassment of the victim, prejudice, and confusion of the issues.
See Delaware v. Van Arsdall,
Additionally, to the extent that the defendant argues that this is an “extreme case” in which application of New Hampshire’s “demonstrably false” standard violates the Federal Confrontation Clause, we disagree.
See Abram,
Prior to trial, the court conducted an
in camera
review of confidential material relating to the victim, including New Hampshire Division for Children, Youth and Families records, psychiatric and psychological evaluations, and medical records. The court then ordered the disclоsure of portions of the records in accordance with
State v. Gagne,
We review a trial court’s decision on the management of discovery and the admissibility of evidence under an unsustainable exercise of discretion standard.
State v. Guay,
Affirmed.