Can a defendant introduce prior false accusations by a victim at the time of trial to discredit that victim’s testimony?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

Can a defendant introduce prior false accusations by a victim at the time of trial to discredit that victim’s testimony?  The answer is yes however it has to be performed by a judge conducting a separate hearing out the ears of the jury prior to same being introduced at the time of trial.

In deciding whether to admit evidence of a prior false accusation, the trial court should conduct an N.J.R.E. 104 hearing and then determine by a preponderance of the evidence whether defendant has proven that the victim/witness made a prior accusation charging criminal conduct and whether that accusation was false. Id. at 157. The trial court may consider the following factors in making its determination:

1. whether the credibility of the victim-witness is the central issue in the case;
2. the similarity of the prior false criminal accusation to the crime charged;
3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;
4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and
5. 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 concludes that evidence of the prior false accusation is admissible, it “has the discretion to limit the number of witnesses who will testify concerning the matter at trial. The court must ensure that testimony on the subject does not become a second trial, eclipsing the trial of the crimes charged.” Ibid. Following Guenther, in 2007, the Legislature amended N.J.R.E. 608 to include paragraph (b), which provides as follows:

The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation. Thereafter, elaborating on its holding in Guenther, our Supreme Court explained:

Guenther recognizes that a witness’s prior false criminal allegations may be relevant to the witness’s credibility. That logic applies with equal force to false criminal allegations made soon after the primary allegation. As defendant aptly observes, a false accusation after an event, if closer in time, can be even more probative than a prior false allegation.

State v. A.O., 198 N.J. 69, 93 (2009).

In this case, because it was a juvenile bench trial, the trial judge decided he did not have to have a ‘separate’ bench hearing on the NJRE 608(b) evidence.  He conducted the hearing at the same time because he considered his juvenile bench trial and the 104 hearing an adequate preservation of the juvenile’s rights.  The appellate panel determined the trial judge did conduct the appropriate hearing regarding the prior accusations… and found the juvenile’s right preserved.  They found no abuse of the trial judge’s discretion and as a result affirmed his decision.

Nevertheless, the key here is that in the criminal court… with adults and a jury…. the trial judge must conduct the Rule 104 in-limine hearing outside the purview of the jury, probably prior to the jury being sworn in, to address whether the defendant and his attorney will be able to attack the victims’ testimony with allegations of prior false accusations.  Failure to conduct this hearing may be considered an abuse of ht. trial judge’s discretion and a successfully appealable issue.