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Improper restriction on cross-exam violates Confrontation Clause [NOT FINAL]

By Randall Hodgkinson

Reid Nelson from the Capital and Conflicts Appeals Office won in State v. Darrell Jackson, No. 94,578 (Kan. App. Feb. 29, 2008), obtaining a new trial in a Harvey County criminal sodomy/aggravated indecent liberties prosecution. During trial, the district court refused to allow the defense to cross-examine regarding the vicitim's sexual history. The COA held that the state's case made the prior history relevant and that the restriction on cross-examination violated the Sixth Amendment:

The State's case emphasized--from opening statement to closing argument--that A.C.'s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In opening statements, the prosecutor said that A.C.'s mother had noticed changes beginning in summer 1999; A.C. was "acting out, a lot more argumentative, a lot more disagreeable, . . . and really behaving badly." Later in opening, the prosecutor said that after A.C. went into foster placement in 2002, her mother found out "why [A.C.] has been acting up and behaving so badly between 1999 and her final entry into SRS custody, 2002"--that she had been abused by Jackson. A.C.'s mother testified as forecast in the opening statement, saying that A.C.'s behavior had changed from 1999 until early 2002, during which time she had been "real hateful to people."

In the context of this claim that Jackson's crimes caused A.C.'s behavior changes from 1999 until 2002, an allegation that she was abused by others in 2000 and 2001 is certainly relevant. Evidence is relevant if it has any logical tendency to prove a fact important to the case. K.S.A. 60-401(b). Evidence that similar sexual assaults had occurred during this time frame is surely relevant because the State's evidence and argument suggested Jackson's assaults had caused A.C.'s emotional trauma and bad behavior. The substantial allegations against Joseph and Travis are important pieces of evidence that provide alternative theories for A.C.'s emotional and behavioral problems.

. . . .

Once again, the State's response on relevance is to ask us to accept A.C.'s testimony as true. The State argues that both A.C. and her mother testified that A.C. was afraid to return because of Jackson and that neither of them testified that she was afraid of Joseph or Travis. But the district court did not allow her to be asked about Joseph and Travis at trial, and the prosecutor had evidence that she had claimed Joseph had threatened her life. Truth is determined in a trial by challenging evidence, not by presenting only one side. Relevance cannot be determined based on the assumption that A.C.'s claimed fear of Jackson is true when there is a plausible case to be made for a similar fear against others.

After determining the evidence was relevant, the COA reviewed federal and previous Kansas cases to conclude that the restriction violated the Confrontation Clause and was not harmless:

We have concluded that Jackson's convictions must be reversed because he was denied the constitutional right to confront the witnesses against him. We do not set aside a jury verdict lightly, nor do we lightly require that witnesses in an emotionally difficult case testify a second time. But Jackson was sentenced here to more than 20 years in prison on these convictions, and we also recognize that no one can--or should--be sent to prison in the United States unless he or she has received a fair trial in compliance with constitutional requirements.

It seems that Judge Leben understands that the Constitution is not a technicality.

Full post as published by Kansas Defenders on February 29, 2008 (boomark / email).