Right of Confrontation Triumphs in NH Supreme Court

03/14/2008. No Cross-Examination on Prior False Accusation = New Trial!

Today, in an appeal briefed and argued by appeals Attorney Ted Lothstein, the New Hampshire Supreme Court reversed an aggravated felonious sexual assault conviction because of the trial court’s refusal to allow the defense to cross-examine the complainant about her prior false accusation of another man. The decision resulted in significant coverage in the Boston Globe, Concord Monitor, and Foster's Daily Democrat.

In the past, the Court has repeatedly upheld the exclusion of such evidence, to the extent that defense lawyers have twice had to go to the First Circuit to get habeas relief. White v. Coplan, 399 F.3d (1st cir. 2005); Ellsworth v. Warden, N.H. State Prison, 333 F.3d 1 (1st Cir. 2003)(Andrew Schulman wins on federal habeas).

Today, in a case where Kornbrekke was accused of adult forcible rape in a “date rape” scenario, the Court held that the trial court erred in precluding cross-examination of the victim regarding her false accusation of a different man seven years prior. She had recanted her earlier accusation, and that case was nol prossed, but the prosecution now claimed that her earlier accusation was true, and the recantation false.

The Court rejected that argument: “Regardless of what characterization it is given, inconsistency exists between the complainant’s original allegation and her later recantation, and this inconsistency can be used to impeach her credibility.” Thus, the Court held that the cross-examination was admissible and not unduly prejudicial to the State under Rule 403.

The Kornbrekke decision constitutes helpful support for arguments that defense counsel should be able to cross-examine an adverse witness about a past act that reflects on his penchant for dishonesty. Different and more onerous legal standards apply when counsel seeks to introduce "extrinsic evidence," or evidence from witnesses other than the one being cross-examined, regarding the past act that reflects negatively on the witness's honesty.

After Kornbekke won his appeal, the prosecution decided not to try the case to a new jury. Instead, the prosecution dropped the charges! Read about it here, in the Concord Monitor.

Read State v. Karl Kornbrekke

Categories: Appeals