Prior sexual assault allegations

In trial of defendant for sexually abusing two minors, the admissibility of evidence that victims had made false accusation of sexual abuse against others was admissible, not under FRE 403, FRE 412, or 608(b), but rather under the Sixth Amendment Right to Confrontation, in United States v. Frederick, 683 F.3d 913 (8th Cir. July 5, 2012) (No. 11-1546).


We hold that the military judge improperly limited cross-examination of the prosecutrix by precluding defense questions concerning her diary, a prior false rape claim, and two prior false claims concerning her health. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986); seeMil.R.Evid. 608(c), Manual for Courts-Martial, United States, 1984. We also hold these constitutional errors were not harmless beyond a reasonable doubt and require a rehearing. See generally Olden v. Kentucky, 488 U.S. 227, 233, 109 S. Ct. 480, 484, 102 L. Ed. 2d 513 (1988).

United States v. Bahr, 33 M.J. 228, (C.M.A. 1991).

From these cases, we discern a general rule: an accused has a constitutional right to offer evidence that his accuser made prior unrelated allegations of rape against third parties when there are reliable indicia that the prior allegations were false.

United States v. Savala, NMCCA 200800818 (N-M Ct. Crim. App. January 28, 2010)(unpub.) rev’d . 70 M.J. 70 (C.A.A.F. 2011).