Feb. 3, 2010 – In a case before the Wisconsin Supreme Court, the state will ask the justices to toughen the evidentiary standard for introducing prior untruthful allegations of sexual assault to rebut a new charge of sexual assault.

Currently, a defendant is required to produce enough evidence to make the falsity of a past allegation reasonably debatable. In State v. DeSantis, 155 Wis. 2d 774 (1990), the supreme court rejected a preponderance of the evidence standard, finding that its lower standard balanced the Legislature’s interest in protecting a complainant from a defendant needlessly rummaging through the complainant’s sexual past and the defendant’s constitutional right to present a defense.

But the state now argues in State v. Ringer, 2008AP652, that this has led Wisconsin to have one of the laxest standards in the nation. The defense reminds the court of its rationale for the DeSantis standard, arguing for the protection of the wrongfully accused who have the “only defense of prov[ing] a negative, i.e., it didn’t happen and a party tried to do this to another person.”

A series of allegations

When she was 10 years old, A.R. said that her biological father, Chris Hodges, had touched her breasts, vagina, and buttocks area during overnight visits with Hodges. Hodges had never married A.R.’s mother and was living with his brother, Richard, during the time of the alleged crimes.

The police questioned Hodges who admitted that he and A.R. had shared a bed and that he had “cuddled up” next to her and rubbed her stomach. He said his fingers “may have bumped the bottom portion of her breasts” and he “may” have even placed his hand on her breast “as he was drifting off to sleep.” Hodges reportedly told police, “I’m not saying it did happen and I’m not saying it didn’t happen.”

Although the Rusk County District Attorney thought the allegations were believable, she declined to prosecute because there were no corroborating facts, circumstances, physical evidence, or witnesses to make the case more than a credibility battle between the child and Hodges. The district attorney also noted that Hodges and A.R.’s mother were involved in a dispute for custody over A.R.

A.R.’s mother had married another man, Jim Ringer, who adopted A.R. following the allegations against Hodges. A.R. then claimed that when she was 12-years-old, Ringer touched her nipple and her vaginal area, that he “humped” against her, that he pushed her hand onto his penis, and he attempted to put his penis in her mouth.

Ringer moved to introduce evidence at trial of A.R’s earlier accusation against Hodges pursuant to Wis. Stat. sec. 972.11(2)(b)3, the rape shield statute.

Initially, Chris Hodges refused to testify at an evidentiary hearing on Ringer’s motion, but he relented after the court held him in contempt. Chris Hodges denied A.R.’s earlier allegations, and Richard Hodges testified he never observed improper sexual contact or that A.R. and her father had been sleeping together. However, Richard Hodges could not clearly recall when A.R. was living at his home or her age at that time.

Admissibility of a prior untruthful allegation is determined by a three-part test: (1) a reasonable person could reasonably infer that the complainant made prior untruthful allegations of sexual assault; (2) this evidence is material to the present prosecution; and (3) the probative value of such evidence outweighs its prejudicial effect.

Within the first prong of the test, Ringer argued that if a preponderance standard requires showing at least a 51 percent likelihood of the prior allegations’ falsity, the DeSantis “reasonable inference” standard should be satisfied by a 50-50 probability. The Barron Circuit Court commented that it could not conclude with certainty whether the allegations were true or not, but held that “a reasonable person could reasonably infer that the complainant made prior untruthful allegations of sexual assault against one Christopher Hodges.” The court also ruled that Ringer could produce extrinsic evidence for the jury to consider rather than just cross-examine the girl in regards to the prior allegations.

The state appealed, but the Wisconsin Court of Appeals affirmed the circuit court decision as an appropriate exercise of its discretion.

Disputed standard

In its appeal to the supreme court, the state charges that the circuit court did not apply the correct legal standard. The state argues that the court’s inability to make a finding with “any certainty” means Ringer did not satisfy the DeSantis standard of “whether a reasonable person could find that the prior allegation was untruthful.”

But Ringer faulted the state for “seiz[ing] on remarks the court made before making its ruling, not the ruling itself” which fully conformed to DeSantis. “It is true that the trial court did some ‘thinking out loud’ before making with ultimate certainty and conviction the finding that a reasonable person could find that the prior allegations were untruthful,” Ringer wrote.

In the alternative, the state urges the justices to adopt a higher evidentiary standard. The state argues that “approximately thirty eight states have required a higher threshold showing of falsity than Wisconsin” in the years following DeSantis. Those other states require a defendant to demonstrate the prior allegation was false or to offer either clear-and-convincing or a preponderance of evidence pointing to its falsity.

The state argues a tougher standard would better advance the purpose of the rape shield law, quoting the Alaska Court of Appeals’ explanation for its adoption of a preponderance standard: “If we were to adopt the ‘some evidence’ test used in Louisiana and Wisconsin, a test which merely requires sufficient evidence to put the matter in doubt, then we would be encouraging trials within trials, and we would also throw open the doors to debates about a complaining witness’s sexual history based on dubious evidence.”

Evidentiary record

The state asserts that the facts do not support the circuit court order. In his statements to police, Chris Hodges admitted to at least some of the alleged sexual touching, even if – as he maintains – he did so unintentionally. “His statements at least partially corroborate the complainant’s allegations that the touching occurred, and render it logically impossible to conclude that the allegations were ‘untruthful,’” the state wrote.

Also, the state argued that Hodges’ “equivocation” when he was interviewed by the police was inconsistent with his denials at the evidentiary hearing. “[T]he fact that he initially refused to testify and was held in contempt further casts doubt on the truthfulness of the testimony he ultimately was forced to give,” the state added.

But Ringer argued the court’s factual findings were made “after hearing testimony of live witnesses … subject to direct and vigorous cross-examination.” Accordingly, these findings are not clearly erroneous and within the circuit court’s “sound and reasoned discretion.”

Not prosecuted

Insisting that the facts did not demonstrate falsity, the state argues that Ringer relied on the failure to prosecute Hodges to cast doubt on A.R.’s prior allegations. The state acknowledged that no published authority in Wisconsin holds that failure to prosecute does not render an allegation untruthful. But, the state said, other jurisdictions have adopted such a position and the justices should take this opportunity to join them.

The truth of an allegation should not be confused with whether the state can satisfy its burden of proof for a criminal conviction, the state argued.

Ringer denied that it was relying solely on the fact that the prior allegations were not prosecuted, but added that this fact “certainly attests to the tenuous nature of the prior allegations.” Ringer criticized the state for attempting to give these allegations evidentiary weight by citing the prosecutor’s opinion that they were true, even if not provable.

“The trier of fact was correct in giving virtually no weight to this opinion testimony from a prosecutor, an opinion that even included the phrase ‘Do I think it happened? Yes…,’” Ringer wrote. “Indeed, such ‘testimony’ would not be allowed at trial in the closing argument.”

Materiality

Turning to the other requirements for admissibility, the state argued that the prior allegations were not “material” to the present prosecution within the meaning of DeSantis.

Materiality, the state argued, is not found just because the evidence undermines the complainant’s general credibility. Rather, DeSantis instructs that materiality includes considerations of remoteness in time, similarity in circumstances, and specific probative value. The state remarked that the DeSantis court found a span of two years to be “too remote” and so the year and a half between the allegations against Hodges and Ringer should be similarly disqualifying.

Further, the state argued that the circumstances of the allegations against Hodges were different from those against Ringer. Unlike the allegations against Hodges, the claims of sexual assault against Ringer specified his mouth and penis. Ringer is also accused of assaulting A.R. typically during the day whereas Hodges allegedly touched A.R. while the two slept together.

But Ringer argued that the allegations “are very similar in that repeated touching of sexual areas of a child is being alleged against both with nearly identical nature of touching, places of touching and physical location while the touching was occurring.”

Moreover, Ringer assert that “evidence bearing directly upon the credibility and veracity of the only complaining witness in a criminal case” cannot be considered immaterial and that the state’s argument “quite frankly borders on the frivolous.”

Probative value

Ringer and the state clashed over whether the probative value of A.R.’s allegations against Hodges outweighed their inflammatory and prejudicial nature, which includes considerations of undue delay, waste of time, misleading the jury, and confusion of the issues.

“It would be horribly confusing to the jury, not to mention a colossal waste of time, to have it sort through the prior allegations in an effort to determine which the assailant admitted, which he denied, and who was more credible as to the disputed events,” the state wrote. “And this exercise would have almost no relevance to the allegations against Ringer.”

Additionally, the state cited State v. Jackson, 216 Wis. 2d 646 (1998), in which the supreme court held that sec. 971.31 (11) presumes proffered evidence to be more prejudicial than probative.

But Ringer said that “it is hard to see how [a] defendant can have a fair and full trial of this controversy without admission of the prior false allegations.”

“Ringer is charged with a serious crime, which exposes him to up to 60 years imprisonment,” the defense brief stated. “He has a right to present his entire defense to the jury, to attack the credibility of the State’s only witness, and to admit all exculpatory evidence available.”

More than cross-examination

The state objected that the circuit court order permits Ringer to use extrinsic evidence to prove the falsity of the prior allegations.

Citing State v. Rognrud, 156 Wis. 2d 783 (Ct.App. 1990), the state said that a prior untruthful allegation is limited to cross-examination of the victim, with no extrinsic evidence. Further, the state said that such a restriction did not violate the defendant’s right to confront witnesses in State v. Olson, 179 Wis. 2d 715 (Ct. App. 1993).

Ringer acknowledged that Rognrud excludes extrinsic evidence in an effort to protect the victim, but he argued that this goal is better achieved in this case by permitting the jury to hear the witnesses who testified at the motion hearing. “Indeed, allowing live testimony may actually assist the complaining witness by giving her the commensurate opportunity to confront and cross examine the witnesses reporting on her prior allegations,” Ringer wrote.

Oral arguments in this case are scheduled for Feb. 10.

By Alex De Grand, Legal Writer, State Bar of Wisconsin