On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue presented here is whether a witness who has accused a defendant of sexual abuse may be impeached by evidence that she made a prior false accusation of sexual abuse.
An Ocean County grand jury charged defendant Kenneth Guenther with committing various sexual offenses against D.F. when she was between the ages of ten and fourteen. Guenther lived in the same household and acted as D.F.'s stepfather at the time of the alleged offenses. On the first day of trial, the prosecutor provided defense counsel with documents detailing that six months before D.F. accused Guenther of sexual abuse, she had admitted to falsely accusing her neighbor of sexually abusing her. D.F. allegedly told two classmates at her middle school, J.O. and D.D., that a neighbor had sexually abused her. J.O. and D.D. reported what they had learned to a school counselor. The counselor then met with D.F. D.F. at first denied telling J.O. and D.D. that she had been sexually abused by her neighbor, then finally admitted that she told the story and that it was a lie. That same day, the vice principal also questioned D.F. At that meeting, D.F. also confessed that what she told her classmates concerning the sexual abuse by her neighbor was a lie. The prosecutor's investigation was completed on July 1, 1999, with no charges filed against the neighbor. Defense counsel requested time to investigate the new information and permission to cross-examine D.F. about the prior false allegation. He stated his intent to impeach D.F. if she denied making the accusation. The court rejected the request, ruling that the accusation was irrelevant.
The jury found Guenther guilty on all of the charges presented to them. The trial court sentenced Guenther to state prison terms aggregating twenty-five years.
On appeal, the Appellate Division remanded for a hearing to determine whether D.F. made the allegation that her neighbor had sexually abused her, and if so, whether the allegation was false. The panel stated that if the trial court determined that D.F. did not falsely accuse her neighbor or if it determined that she did and that the evidence nevertheless was inadmissible, then the verdict would stand. If the court found that D.F. made a false accusation and that it was admissible, a new trial would be necessary. We granted certification.
HELD: Creating a limited exception to N.J.R.E. 608 to allow a prior false accusation to be used to impeach a victim-witness's credibility will promote fairness in the trial process and is not inconsistent with the rationale underpinning the rule. Because we decide the issue on state grounds, we need not address the constitutional question arising under the Confrontation Clause.
1. Our rules permit evidence in the form of opinion, reputation, or a prior criminal conviction to attack a witness's credibility by establishing the witness's character for untruthfulness. However, evidence of specific instances of conduct - other than a prior conviction - to prove the character trait of untruthfulness is prohibited. Specific instances of conduct are admissible, however, when a character trait is an essential element of a charge, claim, or defense, as in a defamation case. In this case, character is not directly at issue, and, therefore, the general prohibition on specific conduct evidence applies. (Pp. 14-15)
2. The general principle embodied in N.J.R.E. 608 originated in the common law. Several centuries ago, courts began to prohibit the use of prior instances of conduct to attack the credibility of a witness for two essential reasons: to prevent unfairness to the witness and to avoid confusion of the issues before the jury. Those reasons A-102-02 State of New Jersey v. Kenneth Guenther 2. remain the present justification for the exclusion of specific conduct evidence. It was not a lack of relevance that gave rise to the rule prohibiting evidence of prior instances of untruthful conduct to impeach the witness's credibility, but the auxiliary policies regarding unfairness to the witness, confusion of issues, and undue consumption of time. When those auxiliary policies do not apply, the rationale for the exclusion of such evidence no longer exists. (Pp. 15-17)
3. The United States Supreme Court decision in Davis v. Alaska, provides the paradigm by which to examine the tension between a state's evidentiary rule and a defendant's confrontation rights. Davis held that the Sixth Amendment right to confrontation trumped a state statute and procedural rule protecting the privacy of a juvenile's delinquency record. The Court recognized that the exposure of a witness' motivation [such as bias] in testifying is a proper and important function of the constitutionally protected right of cross-examination. We conclude that creating a limited exception to N.J.R.E. 608 to allow a prior false accusation to be used to impeach a victim witness's credibility will promote fairness in the trial process and is not inconsistent with the rationale underpinning the rule. Because we decide the issue on state grounds, we need not address the constitutional question arising under the federal Confrontation Clause. (Pp. 26-30)
4. N.J.R.E. 608 does not allow the use of a prior false accusation, to impeach a witness's character for truthfulness. Various courts across the nation have addressed the issue whether a defendant may impeach the credibility of a witness-accuser by showing that the witness made a prior false criminal accusation. Many courts have permitted cross-examination of a witness-accuser who has falsely alleged a sexual crime on a previous occasion. A number of courts also permit the introduction of extrinsic evidence to prove the point. Some courts have carved out an exception to their rules of evidence; others have found justification in the federal Confrontation Clause or in their own state's analogous clause. We conclude that in limited circumstances and under very strict controls a defendant has the right to show that a victim-witness has made a prior false criminal accusation for the purpose of challenging that witness's credibility. Although our Confrontation Clause jurisprudence informs our decision, we do not decide this issue on constitutional grounds, but rather by making a narrow exception to N.J.R.E. 608 consistent with the rationale of that rule. In certain cases, we believe that the interests of justice require that we relax the strictures against specific conduct evidence in N.J.R.E. 608. The weight of authority from other jurisdictions generally favors that approach, though we chart a path consistent with our own jurisprudence and values. We see no reason why prior false accusation evidence should be limited to cases in which the witness is the victim of a sexual crime. (Pp. 30-37)
5. We limit our holding to a criminal case that involves the impeachment of a victim-witness whose credibility was the central issue in the case. The trial in this case essentially was reduced to a credibility contest between the victim and defendant. (P. 38)
6. In deciding whether to permit the impeachment of a victim-witness who allegedly made a prior false accusation, trial courts must first conduct an admissibility hearing. The court must determine by a preponderance of the evidence whether the defendant has proven that a prior accusation charging criminal conduct was made by the victim and whether that accusation was false. The admission of this type of evidence is an exception to N.J.R.E. 608 and should be limited circumstances in which the prior accusation has been shown to be false. The factors to be considered in deciding the issue of admissibility are: a) whether the credibility of the victim-witness is the central issue in the case; b) the similarity of the prior false criminal accusation to the crime charged; c) the proximity of the prior false accusation to the allegation that is the basis of the crime charged; d) the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and e) whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time. If the court determines that evidence of the prior false accusation is admissible, the court may limit the number of witnesses who will testify concerning the matter at trial. The court must ensure that testimony on the subject does not eclipse the trial of the crimes charged. (Pp. 39-40)
7. Whether the defense may introduce evidence of D.F.'s previous accusation is a matter for the sound discretion of the trial court on remand. The State has argued that any presentation of the false accusation issue at A-102-02 State of New Jersey v. Kenneth Guenther 3. trial will require at least nine witnesses. We disagree. Assuming that the school counselor and vice-principal testify consistently with the letters they forwarded to the prosecutor's office, their testimony alone, if believed, would be sufficient to establish that D.F. made an accusation of a criminal nature that she knew to be false. If D.F. admits to making the false accusation, there would be no need for the defense to call any witnesses to prove the point. Of course, D.F. would have the opportunity to give an explanation for making the false report. On the other hand, if D.F. denies ever making the allegation to J.O. and D.D., as she did when questioned by members of the prosecutor's office, then defendant could rebut that testimony by calling the two school officials. We give this guidance for the purpose of suggesting that it is possible to present this issue economically. (Pp. 40-42)
8. We are not creating a new rule of evidence, but merely carving out a narrow exception to N.J.R.E. 608 for the purpose of permitting the jury to consider relevant evidence - in clearly defined circumstances - that may affect its estimation of the credibility of a key witness. The exception to N.J.R.E. 608 that we recognize is limited to the impeachment of a victim-witness whose credibility is the central issue in a criminal case. We submit the question of whether the use of a prior false criminal allegation to impeach credibility should have wider application in other circumstances to this Court's standing Committee on the Rules of Evidence for any recommendations to this Court not inconsistent with this opinion. (Pp. 42-45) The judgment of the Appellate Division is AFFIRMED. This matter is remanded to the trial court for proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI and WALLACE join in JUSTICE ALBIN's opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Albin
Defendant Kenneth Guenther was convicted of sexual assault and other crimes related to the abuse of his stepdaughter. At trial, he was denied the opportunity to present evidence of a prior false accusation of sexual abuse that his stepdaughter made against a neighbor. N.J.R.E. 608 embodies the common law rule that generally forbids admission of specific instances of conduct to attack a witness's character for truthfulness. We must decide, pursuant to N.J.R.E. 608, whether the credibility of a witness who has accused a defendant of sexual abuse may be impeached by evidence that she made a prior false criminal accusation. We also must decide whether that issue implicates a defendant's state and federal constitutional right of confrontation.
On May 9, 2000, an Ocean County Grand Jury charged defendant Kenneth Guenther in a seven-count indictment with committing various sexual offenses against D.F. when she was between the ages of ten and fourteen. Guenther, the "common-law" husband of D.F.'s mother, lived in the same household as D.F. and acted in the role of her "stepfather" at the time of the alleged acts of sexual abuse. Guenther was charged with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (counts one and two); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (count three); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2b, c (counts four and five); third degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count six); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3b (count seven).
On the first day of trial, the prosecutor provided defense counsel with documents detailing that a little more than siX months before D.F. accused Guenther of committing various sexual crimes, she admitted to falsely accusing her neighbor of sexually abusing her. The documents consisted of two investigation reports from the Ocean County Prosecutor's Office and two letters addressed to the prosecutor's office, one from Johan E. de Brigard, the Vice Principal of the middle school attended by D.F., and the other from Mary Ellen Cordisco, a counselor at that school.
The letters from the school officials related that D.F. told two of her classmates, D.D. and J.O., that she had been sexually abused by a neighbor named Tony. D.F. informed the two girls that Tony "had exposed himself to her and that he had forced her to have sex with him." D.F. was distraught when she made that claim to her classmates. One day while walking home from school with D.D., D.F. "pointed to the neighbor and said, 'That's the guy I told you about.'" On April 23, 1999, D.D. and J.O. reported what they had learned to Ms. Cordisco, including the man's name and that he was a convicted child molester.
Ms. Cordisco questioned D.F. in the presence of her two classmates concerning her claim of abuse. D.F., at first, "became very defensive, and then hostile and adamantly denied everything." D.F., however, "finally admitted to telling the girls the story about [the neighbor]" and admitted that "she was lying at the time."
Later, D.F. was interviewed by Ms. de Brigard, the Vice Principal, also in the presence of the two girls and Ms. Cordisco. When Ms. de Brigard repeated to D.F. the account she had purportedly given to D.D. and J.O., D.F. "became upset" that her classmates had betrayed her confidence. D.F. admitted telling the "story" to D.D. and J.O. and confessed "that it was a lie." D.F. explained that she had babysat for Tony and his wife and was "angry" at him because she "had heard stories about him" of a "sexual nature." D.F. did not elaborate on those stories, but told Ms. de Brigard that she "was sorry she had made-up the charges."
That same day, Ms. de Brigard provided the information gathered during her interview to the Ocean County Prosecutor's Office. On May 3, 1999, D.F. was questioned by an investigator from the prosecutor's office. D.F. denied making the claims to her classmates and denied that her neighbor had abused her. She maintained that J.O. "made up the story to Ms. Cordisco" and that D.D. went along with it. The investigator's reports did not explain why D.F. admitted to both Ms. Cordisco and Ms. de Brigard that she had made false sexual accusations. The investigation was completed on July 1, 1999, without the filing of any charges against the neighbor.
Based on those facts, defense counsel requested time to interview the people involved in the investigation and permission to cross-examine D.F. about the prior false allegation. Counsel stated his intent to impeach D.F. with extrinsic evidence in the event she denied making the false accusation. The court rejected defendant's request for a hearing and ruled that the purported false accusation was "irrelevant" and "extremely collateral" and, therefore, inappropriate for consideration by the jury.
A trial before a jury proceeded on March 20-22, 2001. The trial testimony presented two conflicting versions of events.
In January 2000, then fourteen-year-old D.F. accused her "stepfather," defendant Kenneth Guenther, of sexual abuse. D.F.'s mother, Lorraine, and Guenther had lived together as "common law" husband and wife for more than ten years before marrying in the fall of 2000. D.F. had lived with her mother and Guenther since she was four years old when her mother divorced her biological father. D.F. testified that she and her older brother, P.F., considered Guenther their "stepfather" because he had acted in the role of their father since they were children.
According to D.F., Guenther began abusing her when she was nine years old. At first, Guenther exposed himself to D.F. in the bathroom and forced her to "masturbate" him. That abuse occurred monthly when the two were home alone while her mother was at work. D.F. remained silent about the abuse because Guenther told her that if she complained her mother would get in trouble.
On direct examination, D.F. testified that when she was around twelve years old, Guenther started forcing her to perform oral sex on him. Initially, that abuse occurred once a week and then progressed to every other day. On cross-examination she admitted telling the grand jury that the abuse occurred three to four times a day. D.F. stated that when she was around thirteen years old, Guenther started performing oral sex on her. D.F. began to consider sexual acts with Guenther as "just like one of [her] chores." As she got older, D.F. kept the abuse a secret because she feared that she would "pay for" her disclosure by being "hit" or "smacked" by Guenther.
Sometime in 1998 or 1999, D.F. told her brother, P.F., that Guenther was sexually abusing her, although she did not provide many details. On Thanksgiving Day 1999, D.F., her mother, and P.F. visited a relative's house without Guenther. On the drive home, P.F. told his mother that Guenther was molesting D.F. Upon arriving home, Lorraine spoke with Guenther, and for the next week kept a close eye on her daughter. According to D.F., after a week, "it just went back to normal" and the abuse continued. D.F. was resigned that if her mother did not believe her, no one would.
D.F. viewed Guenther as a strict parent, but also recognized that he "favored" her over her brother. On the one hand, Guenther and Lorraine kept a tight rein on their daughter. D.F. had to stay at home to complete her chores, could only visit a friend who lived one house away, and was not allowed to venture further than the end of her street. On the other hand, Guenther, a bail enforcement agent, took D.F. everywhere with him, including on his "bounty hunter" assignments, during which they were together sometimes until the early morning hours.
In 1999, D.F. "skipped" school one day with one of her brother's friends, John Cowie, who was several years older than D.F. Guenther and Lorraine strongly disapproved of their daughter's relationship with Cowie. Guenther accused D.F. of smoking marijuana with Cowie. At first D.F. denied the accusation, but confessed after Guenther struck her and her brother with a cutting board. After Guenther went to visit Cowie's parents, D.F. professed to be neither concerned nor embarrassed.
In January 2000, D.F.'s brother ran away and made his way to the home of their natural father. After P.F. arrived at his father's house, the police were called to arrange for his transport home. During that process, P.F. spoke with the police and revealed that his sister had been molested by Guenther. That same day, a Division of Youth and Family Services (DYFS) worker was dispatched to interview D.F. at her home.
In the interview, D.F. denied she had been abused by Guenther. At trial, D.F. said that she lied to the DYFS worker because Guenther was within hearing distance during the interview, and she feared that if she disclosed the truth she would later be beaten. D.F. also believed that no one would believe her because Guenther had friends on the local police force and was involved with the court system.
The next day, in response to a court order, D.F. appeared in the Ocean County Courthouse because her natural father had taken legal steps to gain custody of both her and her brother. While in the courthouse complex, D.F. was interviewed by members of the prosecutor's office and revealed the history of Guenther's sexual abuse of ...