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Keywords

impeachment; FRE; sexual Assault; victim; testimony; witness; trial; defendant's rights; defendant

Abstract

The Court’s categorical recognition of bias as a constitutionally protected, and therefore rape-shield recognized, exception to the general bar on evidence of sexual history has led to questions about whether other forms of impeachment might also evade rape shield restrictions. In particular, courts have grappled with the admissibility of impeachment by evidence of a prior false accusation (PFA).

The current treatment of PFAs is inconsistent and controversial for several reasons. First, as explained further in Part I, there is a lack of clear guidance in the rules about how such evidence should be treated. Second, of course, there are the contradictory political and social forces referenced above, which resulted in a history replete with examples of disbelieving and smearing credible complainants, as well as of believing and acting on false accusations. Last, perhaps, legal actors are reluctant to take a side in what feels like a binary debate between those who “believe all women” and those who, like Sir Matthew Hale, view rape as an accusation “easily to be made . . . and harder to be defended.” Ultimately, these factors have led to inconsistent and unjust treatment of prior false-accusation evidence—both in the sense of admitting evidence that should be excluded and excluding evidence that should be admitted.

In Part II, this Essay argues that evidence of a witness’s PFA is so distinctive and powerful as a form of impeachment that it is imperative for a factfinder to be able to consider it, so long as the PFA is first shown to be of sufficient reliability. Because the existing rules inadequately address the issue and courts have failed to articulate and apply a consistent rule, Part III of this Essay proposes adopting a new rule along with providing suggested text. Although propelled by the concerns surrounding PFAs in the sexual assault context, it is essential to note that the logic behind the rule, and thus the rule itself, applies to all case types and all witnesses, not just to sexual assault complainants.

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