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Morgan v. State (9/27/2002) ap-1828
Morgan v. State (9/27/2002) ap-1828
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FREDERICK WILBUR MORGAN, III, )
) Court of Appeals No.
A-7700
Appellant, )
Trial Court No. 1KE-99-368 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No.
1828 September 27, 2002]
)
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Thomas M. Jahnke,
Judge.
Appearances: Michael D. Dieni, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kim S.
Stone, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General,
Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
The defendant in this case was being tried for sexual
assault. He asked the trial judge to allow him to introduce the
testimony of several witnesses who purportedly were prepared to
say that the complaining witness (the alleged victim) had twice
previously made false accusations of sexual assault against other
men. In Covington v. State, 703 P.2d 436, 441-42 (Alaska App.
1985), we held that this type of evidence is admissible if, as a
foundational matter, the defendant establishes the falsity of the
prior accusations as, for example, where the charges somehow had
been disproved or where the witness had conceded their falsity.
In this appeal, we are asked to clarify our holding in
Covington. What exactly must a defendant prove when seeking to
establish that an alleged sexual assault victim has made a prior
false accusation of rape? And what is the burden of proof on
this issue?
For the reasons explained here, we conclude that a
defendant must convince the trial judge by a preponderance of the
evidence (1) that the complaining witness made another accusation
of sexual assault, (2) that this accusation was factually untrue,
and (3) that the complaining witness knew that the accusation was
untrue. The defendant can prove these elements through voir dire
examination of the complaining witness or through presentation of
extrinsic evidence i.e., documentary evidence or the testimony
of witnesses having knowledge of the prior accusation.
The defendant must present this foundational evidence
to the trial judge outside the presence of the jury. If the
trial judge concludes that, more likely than not, the complaining
witness made a knowingly false accusation of sexual assault on
another occasion, then the defendant will be permitted to present
this evidence to the jury.
Underlying facts: Morgans offer of proof and the trial
judges ruling
Frederick Wilbur Morgan, Jr., was charged
with engaging in sexual penetration with T.F. while she
was so intoxicated as to be incapacitated or unaware
that a sexual act was occurring. Morgan defended this
charge by asserting that T.F. had been fully aware of
the sexual intercourse and had consented to it. In
other words, he argued that T.F. was falsely accusing
him of sexual assault.
In support of this defense, Morgan asked the
trial judge to allow him to present the testimony of
four witnesses who (according to Morgans offer of
proof) were prepared to say that T.F. had accused men
of sexually assaulting her on two previous occasions,
only to later concede that these accusations were
false. The trial judge, Superior Court Judge Thomas M.
Jahnke, ruled that Morgans proposed evidence was barred
by Covington.
As explained above, Covington states that
this type of impeaching evidence is admissible only if
the charges somehow ha[ve] been disproved or where the
witness ha[s] conceded their falsity.1 Judge Jahnke
interpreted this passage to mean that it was not enough
for a defendant to present witnesses who would testify
to the falsity of the prior accusations or who would
testify that the complaining witness had recanted those
accusations. Rather, Judge Jahnke concluded that
Covington required Morgan to show either (1) that T.F.
had made [an] official concession that the charges were
false by, for example, testifying under oath ... that
they were false or conceding their falsity in a
deposition or [in an] answer to an interrogatory; or
(2) that T.F.s prior accusations ha[d] been adjudicated
false by a court or other neutral tribunal. (emphasis
in Judge Jahnkes written order).
Based on this interpretation of Covington,
Judge Jahnke refused to hear the testimony of Morgans
witnesses concerning T.F.s alleged prior accusations of
sexual assault. (The judge noted, however, that Morgan
was still free to have these same witnesses present
their opinion of T.F.s character for honesty, so long
as they did not go into specifics. See Alaska Evidence
Rules 404(a)(3), 405, and 608.)
Later, at trial, Judge Jahnke allowed Morgans
attorney to conduct what was essentially a voir dire
examination of T.F. to see if she would concede (1)
that she had previously accused the two other men of
sexual assault and (2) that those prior accusations
were false. But T.F. denied accusing these other men
of sexual assault. In light of these answers, and
given Judge Jahnkes earlier ruling, Morgans attorney
let the matter drop.
The questions left unanswered by our decision in
Covington
In Covington, the defendant argued that he
should have been allowed to present evidence suggesting
that the complaining witness had falsely accused two
other men of sexual abuse. The complaining witness
agreed that she had accused the two men of abusing her,
but she asserted that the accusations were true.
Covington wanted to call one of the two men to the
stand and have him deny the truth of the accusations.2
This Court noted that [a] majority of the
courts which have considered [this] issue permit such
evidence[, but] only if the defendant makes a showing
out of the presence of the jury that the witness[s]
prior allegations of sexual assault were false.3 We
then declared that we would adopt this rule for
Alaska.4
The problem is that, even though a majority
of states allow a defendant to raise the issue of a
complaining witnesss prior false accusations under
certain circumstances, there is no majority rule
concerning this evidence. Our sibling states rely on
several different theories to justify allowing a
defendant to inquire or present evidence concerning the
complaining witnesss prior accusations and the scope
of the permitted inquiry varies from state to state,
depending on that states legal rationale for allowing
the inquiry.
(a) Can a defendant introduce extrinsic evidence of
a complaining witnesss prior false accusations?
The court decisions in this area focus on two
potential legal impediments to a defendants right to
introduce evidence of prior false accusations. The
first impediment is the rule embodied in Alaska
Evidence Rules 405 and 608: the prohibition against
attacking a witnesss character for honesty by
presenting proof of specific instances in which the
witness has acted dishonestly. The second impediment
is the rule that a party is not allowed to introduce
extrinsic evidence to impeach a witnesss answers on
cross-examination regarding collateral matters (such as
the witnesss possible acts of dishonesty on other
occasions).5
Adhering to these rules, the courts of New
Mexico and Maryland allow a defendant to cross-examine
the complaining witness about potentially false prior
accusations, but these states bar the defendant from
presenting extrinsic evidence to rebut or impeach the
complaining witnesss answers.6
Massachusetts appears to follow this same
rule. Moreover, Massachusetts restricts the defendants
right of cross-examination to cases in which the
complaining witnesss testimony is confused or
improbable, there is no corroboration, and the
defendant produces evidence of a series or pattern of
false accusations of the same type of sexual
misconduct.7
Other courts have answered these potential
objections by holding that, when a defendant is on
trial for sexual assault, the complaining witnesss
prior false complaints of sexual assault constitute a
special kind of prior falsehood that has particular
relevance above and beyond the fact that it may
indicate the witnesss general character for
dishonesty.8 In these states, a defendant may both
cross-examine the complaining witness and present
extrinsic evidence of prior false accusations if the
complaining witness denies having made them.9
This result appears to be consistent with the
common-law doctrine that a party could present evidence
of a witnesss corruption a term that encompassed
evidence of (1) the witnesss general willingness to lie
under oath, (2) the witnesss offer to give false
testimony for money or other reward, (3) the witnesss
acknowledgement of having lied under oath on prior
occasions, (4) the witnesss attempt to bribe another
witness, or (5) the witnesss pattern of presenting
false legal claims.10 Dean Wigmore concedes that the
precise theoretical foundation of this sort of
impeachment is not easy to determine because, he says,
the impeachment is related in one aspect to interest,
in another to bias, in still another to character
(i.e., involving a lack of moral integrity). Despite
this ambiguity, Wigmore concludes that the essential
discrediting element of the impeachment was its
relevance to proving the witnesss willingness to
corrupt the legal process the witnesss willingness to
obstruct the discovery of the truth by manufacturing or
suppressing testimony.11
But the common-law rules of evidence have
been superseded in most American jurisdictions by
evidence codes modeled after the Federal Rules of
Evidence, and not all courts believe that the common-
law doctrine of impeachment for corruption has survived
the enactment of these evidence codes. For example,
the Texas Court of Criminal Appeals concluded that the
practice of allowing a complaining witness to be
impeached by evidence of prior false accusations cannot
easily be squared with the dictates of [Evidence] Rule
608(b) the rule that prohibits a party from attacking
a witnesss character for honesty by presenting evidence
of specific instances in which the witness has acted
dishonestly.12
Nevertheless, even these courts allow sexual
assault defendants to delve into a complaining witnesss
prior false accusations when the circumstances are
particularly compelling. Thus, the Texas court, the
Oregon Supreme Court, and the Kansas Court of Appeals
have concluded that, despite the prohibition contained
in their counterparts to Evidence Rule 608, the
confrontation clause of the Constitution requires this
kind of impeachment if the evidence of the complaining
witnesss fabrication is strong enough.13
We believe that this confrontation-clause
rationale is, at its core, simply a restatement of the
principle that, in sexual assault prosecutions, a
complaining witnesss prior false accusation of sexual
assault can indeed have a special relevance a
relevance that removes this evidence from the normal
ban on attacking a witnesss general character for
honesty through the use of specific instances of
dishonesty. Thus, the confrontation-clause states
effectively reach the same conclusion as the states
which interpret their evidence rules to allow this type
of impeachment: when there is strong evidence that the
complaining witness has falsely accused others of
sexual assault, this evidence is admissible.
We therefore clarify our decision in
Covington: if the defendant proves that a complaining
witness has made prior false accusations of sexual
assault (under the rules explained in the next section
of this opinion), the defendant is not limited to cross-
examining the complaining witness concerning these
prior accusations. Rather, the defendant can both
cross-examine the complaining witness and present
extrinsic evidence on this point.
(b) What is the defendants foundational burden of
proof?
This brings us to the question: how does a
defendant prove that a complaining witness has made
false accusations of sexual assault? Again, there is
no majority rule on this issue, even among the states
that allow defendants to present extrinsic evidence of
a complaining witnesss false accusations.
Louisiana and Wisconsin have perhaps the most
wide-open rule. The Louisiana Supreme Court has
declared that this issue is governed by Louisianas
counterpart to Alaska Evidence Rule 104(b).14 Thus, a
Louisiana court will allow a defendant to introduce
evidence tending to show that a complaining witness has
made prior false accusations if the defendant merely
offers evidence sufficient to support [this] finding
evidence from which a jury might reasonably conclude
that the complaining witness had made a false
accusation.15 The Wisconsin Supreme Court has reached
this same conclusion.16
The Oregon rule of admissibility is somewhat
stricter, but again judges are instructed not to
resolve the disputed issue themselves. Rather, they
are to let the defendant litigate the issue to the jury
if there is substantial evidence that the prior
accusation was false, and if the probative value of
this evidence is not outweighed by the risk of unfair
prejudice created by litigating this issue.17
In contrast to Louisiana, Wisconsin, and
Oregon, other states require their trial judges to be
more active gate-keepers. In these states, the
impeaching evidence is admissible only if the defendant
first convinces the trial judge sitting as a
preliminary finder of fact that (1) the complaining
witness made another complaint of sexual assault, (2)
this complaint was untrue, and (3) the complaining
witness knew that the complaint was untrue.
The courts use various phrases to describe
the requisite showing of falsity; indeed, you will find
different wording even among decisions from the same
jurisdiction. Some courts require proof of actual
falsity18 or a reasonable probability of falsity19;
other courts require proof that the accusation is
demonstrably false20 or convincingly false21.
But despite these variations, all of these
courts subscribe to the same underlying principle: It
is not sufficient for the defendant to show that the
prior accusation is arguably false22 or that the matter
is reasonably debatable. Rather, the defendant will
not be allowed to present this matter to the jury
unless the defendant first convinces the trial judge
that the complaining witness has knowingly made a false
complaint of sexual assault. This is the approach we
adopted in Covington23, and we reaffirm it here.
But what exactly must a defendant prove to
establish the falsity of the complaining witnesss prior
accusation? In Covington, we stated that it was the
defendants burden to prove that the witness[s] prior
allegations of sexual assault were false, as, for
example, where the charges somehow had been disproved
or where the witness had conceded their falsity.24 The
trial judge in the present case interpreted this
language to mean that there are only two methods of
proof available to a defendant, and both of these
methods require formal litigation. The judge ruled
that the Covington test could be met only by proof that
the complaining witness has conceded, under oath, that
the accusation was false, or by proof that a court has
formally adjudicated the accusation to be false.
We conclude that this is too narrow a reading
of Covington. Unless the person named in the prior
accusation brought and won a slander suit against the
complaining witness, or unless the prior false
accusation eventually led to the complaining witnesss
conviction for perjury, it will be rare that a tribunal
will have directly adjudicated the truth or falsity of
a prior accusation. If the accusation led to a
criminal prosecution and the defendant was acquitted,
this proves only that the jury had a reasonable doubt
concerning the truth of the accusation.25 Indeed,
courts from other states have ruled that not even the
dismissal of a criminal prosecution at preliminary
hearing i.e., dismissal for lack of probable cause is
sufficient to establish the necessary foundational
proof of falsity, since such dismissals can occur for
reasons unrelated to the credibility of the complaining
witness.26
The other suggested method of proof formal
concession, under oath, that the prior accusation was
false leaves a defendant at the mercy of the
complaining witnesss conscience. Even when there is
overwhelming evidence that a prior accusation was
false, there will be times when the complaining witness
will not concede this point. Moreover, even when the
complaining witness has recanted under oath, this will
not always resolve the true factual question: was the
prior accusation actually false?
The distinction between recantation and
actual falsity is highlighted in State v. MacDonald,
956 P.2d 1314 (Idaho App. 1998). The defendant in
MacDonald was charged with rape. He wished to present
evidence that when the complaining witness was a
teenager, she had accused her adoptive father of sexual
abuse but later formally recanted the charge.27 When
the trial judge held a hearing on this matter, the
complaining witness admitted that she had recanted the
charge against her adoptive father, but she explained
that she had done so only because of her family
situation, and she declared that the charge had in fact
been true.28
On this record, the Idaho Court of Appeals
upheld the trial judges decision to exclude evidence of
the complaining witnesss recantation. The appellate
court concluded that the trial judges decision was a
valid exercise of discretion under Evidence Rule 403,
since the probative value of the recantation was
questionable and was outweighed by the risk of unfair
prejudice and confusion of issues.29 In other words, a
complaining witnesss recantation is conclusive of the
falsity of the prior accusation only when the validity
of the recantation is not disputed.
For these reasons, we conclude that the trial
judge in the present case did not construe Covington
correctly. Covington refers to recantations and prior
adjudications as examples of how the falsity of a prior
accusation might be proved, but the true issue the
question to be resolved by the trial judge is whether
the prior accusation was actually and knowingly false.
We conclude that a defendant is entitled to rely on
normal evidentiary methods the presentation of
witnesses, documents, and physical evidence to prove
this point to the trial judge at the foundational
hearing.
One final issue must be resolved: what
standard of proof must the defendant meet when
presenting the foundational proof that a complaining
witnesss prior accusation was knowingly false?
We have already rejected the approach taken
by Louisiana, Wisconsin, and Oregon states that
require the defendant to prove only that the falsity of
the accusation is reasonably debatable. We also agree
with other jurisdictions who hold that the alleged
perpetrators denial of the prior accusation is not
sufficient, in itself, to establish the falsity of the
accusation.30 Indeed, this was the offer of proof that
the defendant made in Covington, and we held that this
offer of proof was insufficient, as a matter of law,
[to] establish the falsity of the alleged prior
complaints.31
This leaves us with a choice between two
burdens of proof: proof by a preponderance of the
evidence, and proof by clear and convincing evidence.
As the Supreme Court of Hawaii recently
noted, courts have varied widely with respect to the
standard of proof required to establish the
foundational showing of falsity.32 Based on its own
prior decisions involving foundational proof, the
Hawaii court concluded that the proper burden of proof
was preponderance of the evidence.33 Other states use
a preponderance standard too.34
We acknowledge that some courts require
convincing evidence of falsity, in order to make sure
that juries are not distracted by debatable and
possibly collateral information.35
Having considered this matter, we adopt
preponderance of the evidence as the standard of proof
that a defendant must meet when seeking to prove (as a
foundational matter under Covington) that the
complaining witness has made a prior knowingly false
accusation of sexual assault. 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 witnesss sexual
history based on dubious evidence. We note that
preponderance of the evidence is the foundational
standard commonly used in Alaska to determine similar
questions of admissibility or exclusion.36 We also
note that if we adopted the clear and convincing
evidence standard, we would require trial judges to
exclude evidence of a complaining witnesss prior
accusations of sexual assault even after the judge had
concluded that those prior accusations were probably
false. For these reasons, we conclude that
preponderance of the evidence is the proper standard of
proof.
If, based on the defendants evidence at the
foundational hearing, the trial judge concludes that
the defendant has demonstrated by a preponderance of
the evidence that the complaining witness made a
knowingly false accusation of sexual assault on another
occasion, then the trial judge shall allow the
defendant to present this evidence to the jury. If, on
the other hand, the defendant fails to meet this
standard of proof either with respect to whether the
complaining witness made the prior accusation, or with
respect to whether that accusation was knowingly false
then the defendants evidence will not be admissible.
(On appeal, an appellate court will not
disturb the trial judges resolution of this question
unless the trial judges finding is clearly erroneous.37
)
Conclusion
In the present case, the trial judge declined
to hear the testimony of Morgans four witnesses who
were purportedly ready to assert that T.F. had made
knowingly false accusations of sexual assault in the
past. This was error. The trial judge should have
heard Morgans witnesses and then decided whether Morgan
had shown by a preponderance of the evidence that T.F.
had made knowingly false accusations of sexual assault.
We therefore remand this case to the superior court so
that this foundational hearing can be held.38
If Morgan proves that T.F made knowingly
false accusations of sexual assault, then the trial
judge should re-determine Morgans guilt in light of
this evidence. (Morgan was tried by the court sitting
without a jury.) If, however, Morgan fails to meet
this burden of proof, then the superior court should
affirm Morgans conviction.
COATS, Chief Judge, concurring.
This case raises the issue of whether a
defendant in a sexual assault case can present evidence
that the person who is accusing him of the sexual
assault has made a prior false claim of sexual assault.
If a sexual assault victim has previously
falsely accused another person of sexually assaulting
her, this evidence can be probative to call the current
accusation into question. This is why, if the prior
false accusation can be proven, it is generally
admissible.1 But in the real world, unless the alleged
victim admits the false prior accusation, it is
frequently difficult to establish that the alleged
victim has previously made a false accusation. We
would expect someone who is accused of sexual assault
to deny that the sexual assault occurred. Even if the
prior sexual assault went to trial and the defendant
was acquitted, all this proves is that the jury had a
reasonable doubt that the sexual assault occurred. It
does not prove that the defendant was factually
innocent or the alleged victim made a false accusation.
Therefore, cases such as Covington v. State,2 place a
substantial burden on the defendant who wishes to
establish that the alleged victim has made a prior
false accusation. The evidence in support of the
contention that the alleged victim made a prior false
accusation raises the specter that the trial court
could be faced with trying another sexual assault case
within the current sexual assault trial. In my view,
cases such as Covington reflect the policy embodied in
Alaska Evidence Rule 403 (that courts should not admit
evidence unless the probative value of the evidence
outweighs the danger of unfair prejudice). In many
instances, evidence that the victim has previously made
a false charge of a sexual assault will be inconclusive
and probative value of this evidence will generally be
outweighed by the danger of unfair prejudice.
But Morgans case departs from the general
problem courts face when a defendant offers to present
evidence that an alleged victim has made a prior false
accusation of sexual assault. In this case, the
alleged victim, T. F., admitted that she had consensual
intercourse with R. R. and C. B. She testified that
she never accused these two men of sexually assaulting
her and admitted that if she reported that R. R. and C.
B. had sexually assaulted her, those statements would
be false. Morgan wanted to present the testimony of
four witnesses who would testify that T. F. had made
statements that R. R. and C. B. had sexually assaulted
her.
According to Morgans offer of proof, the
prior acts of intercourse and the allegedly false
charges occurred within a few months of the current
charges. So, if T. F. made the false statements, the
statements were relatively contemporaneous with her
report that Morgan sexually assaulted her.
If T. F. falsely accused others of sexual
assault within a few months of the current incident,
this evidence would be probative in evaluating T. F.s
credibility. And, this case does not raise the
difficult problems that occur when an alleged victim
claims that she was previously sexually assaulted and
the perpetrator denies that the assault occurred.
Here, T. F. concedes that she was not sexually
assaulted. The only question is whether she made the
false accusations.
It is certainly not clear whether T. F. made
prior false allegations of sexual assault. The State
argues that Morgans witnesses were friends of his and
that they were lying. But whether Morgans witnesses
were credible or not is the kind of question that fact
finders deal with on a regular basis. And, because
this case was a bench trial, I fail to see how allowing
Morgan to present this evidence could be unduly
prejudicial.
Accordingly, I concur that we should remand
the case to Judge Jahnke. On remand, Morgan should be
permitted to present his evidence that T. F. had
previously made false accusations of sexual assault.
Judge Jahnke should then reevaluate the evidence in the
case and redetermine his verdict.
_______________________________
1 Covington, 703 P.2d at 442.
2 See id., 703 P.2d at 441-42.
3 Id. at 442.
4 Id.
5 See Worthy v. State, 999 P.2d 771, 774 (Alaska 2000): As
a general rule, contradictory evidence may not be admitted
if it relates to a collateral matter. If a matter is
considered collateral, the testimony of the witness on
direct or cross-examination stands the examiner must take
the witnesss answer. If the matter is not collateral,
extrinsic evidence may be introduced disputing the witnesss
testimony on direct or cross-examination.
6 See State v. Scott, 828 P.2d 958, 963 (N.M. App. 1991);
State v. Cox, 468 A.2d 319, 323-24 (Md. 1983).
7 See Commonwealth v. Bohannon, 378 N.E.2d 987, 991 (Mass.
1978); Commonwealth v. Barresi, 705 N.E.2d 639, 641 (Mass.
App. 1999); Commonwealth v. Nichols, 639 N.E.2d 1088, 1090
(Mass. App. 1994); Commonwealth v. Hicks, 503 N.E.2d 969,
972 (Mass. App. 1987); Commonwealth v. Blair, 488 N.E.2d
1200, 1202-03 (Mass. App. 1986).
8 See, e.g., State v. Anderson, 686 P.2d 193, 199-200 (Mont.
1984).
9 See Smith v. State, 377 S.E.2d 158, 160 (Ga. 1989); People
v. McClure, 356 N.E.2d 899, 901 (Ill. App. 1976); Little v.
State, 413 N.E.2d 639, 643 (Ind. App. 1980); Beck v. State,
824 P.2d 385, 388-89 (Okla. Crim. App. 1991); State v. Izzi,
348 A.2d 371, 372-73 (R.I. 1975); Miller v. State, 779 P.2d
87, 89-90 (Nev. 1989).
10 See John Henry Wigmore, Evidence in Trials at Common
Law (Chadbourn revn 1970), 956-964, Vol. 3A, pp. 802-812.
11 Wigmore, 956, Vol. 3A, pp. 802-03.
12 Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App.
2000).
13 See Lopez 18 S.W.3d at 225; State v. Nab, 421 P.2d 388,
390-91 (Or. 1966); State v. Barber, 766 P.2d 1288, 1289-90
(Kan. App. 1989).
14 Alaska Evidence Rule 104(b) states: When the relevancy
of evidence depends upon the fulfillment of a condition of
fact, the court shall admit it upon, or subject to, the
introduction of evidence sufficient to support a finding of
the fulfillment of the condition.
15 State v. Smith, 743 So.2d 199, 203 (La. 1999), citing
Huddleston v. United States, 485 U.S. 681, 690; 108 S.Ct.
1496, 1501; 99 L.Ed.2d 771 (1988).
16 See State v. DeSantis, 456 N.W.2d 600, 606-07 (Wis.
1990).
17 See State v. LeClair, 730 P.2d 609, 613-16 (Or. App.
1986).
18 State v. Hutchinson, 688 P.2d 209, 212-13 (Ariz. App.
1984).
19 Smith v. State, 377 S.E.2d 158, 160 (Ga. 1989); State
v. Barber, 766 P.2d 1288, 1290 (Kan. App. 1989); Clinebell
v. Commonwealth, 368 S.E.2d 263, 266 (Va. 1988).
20 State v. Superior Court, 744 P.2d 725, 730-31 (Ariz.
App. 1987), disapproved on other grounds by State v. Getz,
944 P.2d 503, 506-07 (Ariz. 1997); Little v. State, 413
N.E.2d 639, 643 (Ind. App. 1980); State v. Anderson, 686
P.2d 193, 199-200 (Mont. 1984); State v. Kringstad, 353
N.W.2d 302, 311 (N.D. 1984).
21 Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981);
State v. Kringstad, 353 N.W.2d 302, 311 (N.D. 1984).
22 State v. Kringstad, 353 N.W.2d 302, 311 (N.D. 1984).
23 See Covington, 703 P.2d at 442.
24 Id. at 442.
25 See United States v. Watts, 519 U.S. 148, 155; 117
S.Ct. 633, 637; 136 L.Ed.2d 554 (1997); Dowling v. United
States, 493 U.S. 342, 359-360; 110 S.Ct. 668, 678; 107
L.Ed.2d 708 (1990).
26 See State v. Hutchinson, 688 P.2d 209, 213 (Ariz. App.
1984); People v. Alexander, 452 N.E.2d 591, 595 (Ill. App.
1983).
27 McDonald, 956 P.2d at 1315-16.
28 Id. at 1316-17.
29 Id. at 1318.
30 See United States v. Withorn, 204 F.3d 790, 795 (8th
Cir. 2000); State v. Anderson, 686 P.2d 193, 200 (Mont.
1984).
31 Covington, 703 P.2d at 442.
32 State v. West, 24 P.3d 648, 655 (Haw. 2001).
33 Id. at 656.
34 See Miller v. State, 779 P.2d 87, 90 (Nev. 1989).
35 See State v. White, 765 A.2d 156, 159 (N.H. 2000);
State v. Johnson, 692 P.2d 35, 43 (N.M. App. 1984); Hughes
v. Raines, 641 F.2d 790, 792 (9th Cir. 1981); see also
Clinebell v. Commonwealth, 368 S.E.2d 263, 266 (Va. 1988)
(holding that, because two of the complaining witnesss
claims were patently untrue, there was a reasonable
probability that two other accusations made by her were
false as well).
36 The foundational facts required to establish the
admissibility of a co-conspirators statement must be proved
to the trial judge by a preponderance of the evidence.
Arnold v. State, 751 P.2d 494, 502 (Alaska App. 1988).
The government must prove the voluntariness of a
defendants confession by a preponderance of the evidence.
John v. State, 35 P.3d 53, 62 (Alaska App. 2001).
False statements in an affidavit supporting a search
warrant must be struck unless the State shows, by a
preponderance of the evidence, that the statements were not
made intentionally or with reckless disregard for the truth.
State v. Malkin, 722 P.2d 943, 946 (Alaska 1986); Wallace v.
State, 933 P.2d 1157, 1163 (Alaska App. 1997).
The state bears the burden of proving the validity of a
Miranda waiver by a preponderance of the evidence. State v.
Ridgely, 732 P.2d 550, 554-55 (Alaska 1987).
But compare Reutter v. State, 886 P.2d 1298, 1307-08
(Alaska App. 1994), where the court rejected the
preponderance of the evidence standard and held that the
government must prove its foundational facts by clear and
convincing evidence when it seeks to have a child victim in
a sexual abuse case testify outside the presence of the
defendant pursuant to AS 12.45.046:
Given the constitutions express
protection of confrontation as an individual
right of the accused, and ... [b]ecause of
the integral role confrontation plays in the
adjudication of innocence and guilt, and its
direct bearing on the integrity of
fact-finding at trial, ... any risk of error
in balancing the individual right against the
countervailing public interest must fall on
the side of protecting the innocent from an
unjust conviction. ... [T]he preponderance
of the evidence standard cannot provide such
protection, and no dilution of the right to
confrontation should be permitted without an
express finding that the requirements of
AS 12.45.046 ... have been met by clear and
convincing evidence.
37 State v. West, 24 P.3d 648, 657 (Haw. 2001).
38 See People v. Shepard, 551 P.2d 210, 212-13 (Colo. App.
1976); Shelton v. State, 395 S.E.2d 618, 620 (Ga. App. 1990)
(holding that when the trial judge has erroneously refused
to hear the defendants evidence of a possibly false
accusation, the remedy is to give the defendant the
opportunity to present the evidence).
1 See Covington v. State, 703 P.2d 436, 441-42 (Alaska App.
1985).
2 703 P.2d 436.
