EVIDENTIARY ISSUES FREQUENTLY	ARISING IN SEX CASES

By: Dallas Sacher

Introduction

As all experienced criminal defense lawyers know, it is extremely difficult to handle a case where the client has been charged with a serious sex offense. Due to the nature of the charge, many jurors instinctively presume that the defendant is guilty. Moreover, the Legislature and appellate courts have devised a set of rules which make it tremendously hard to obtain a fair trial

Once a defendant is convicted, it becomes even more difficult to obtain an appellate remedy. In an era of hot button politics, appellate judges are loathe to provide relief to a defendant who is despised by a majority of the citizenry.

Given this reality, appellate counsel must display extraordinary skill and desire in order to persuade an appellate court that a new trial must be ordered in a sex case. Although appellate counsel is certain to be disappointed by the result in a great many cases, it is nonetheless true that a large number of evidentiary issues are potentially available in a sex case.

The purpose of this article is twofold. First, the general rules of law concerning garden variety evidentiary issues will be discussed. It is hoped that the reader will thereby obtain a background in the relevant black letter law. Second, and more importantly, the attached habeas petition provides a real life exploration of many of the rules of evidence peculiar to sex cases. By viewing the issues in the context of an actual case, counsel should obtain a greater understanding of the application of the law.

A final introductory word is in order. Having read many transcripts in sex cases, I have reached the unfortunate conclusion that a substantial number of trial lawyers are woefully ignorant of the rules of evidence as they apply to sex charges. Trial counsel often fail to make appropriate objections and ignore helpful evidence which they could have presented. Thus, it is often necessary to pursue a claim of ineffective assistance of counsel in order to reach the merits of evidentiary issues. Indeed, the attached habeas petition reveals a textbook example of the fact that many sex defendants are betrayed by the ignorance of their own lawyer.

I.	WHEN FACED WITH AN ISSUE ARISING UNDER EVIDENCE CODE SECTION 1108, COUNSEL MUST ENGAGE IN A SKILLFUL USE OF THE RECORD.

In 1995, the Legislature enacted Evidence Code section 1108 which allows for the admission of any uncharged "sexual offense" when the present charge involves a major sex crime. The term "sexual offense" has an incredibly broad meaning which includes circumstances where the defendant merely conspired to assist in a sex crime and did not actually perform the sex act himself. (Section 1108, subd. (d)(1)(E).)

As our Supreme Court has acknowledged, section 1108 was intended to allow juries to consider the defendant's propensity to commit sex crimes. (People v. Falsetta (1999) 21 Cal.4th 903, 907.) Under section 1108, the trier of fact may consider the defendant's commission of a prior sex crime "'"as evidence of the defendant's disposition to commit such crimes, and for its bearing on the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense."' [Citation.]" (Id., at p. 912.)

Remarkably, the California Supreme Court has unanimously held that section 1108 is not violative of the Due Process Clause of the federal Constitution. (Falsetta, supra, 21 Cal.4th 903, 910-922.) To date, the U.S. Supreme Court has not weighed in on this issue. While it is unlikely that the U.S. Supreme Court will take a section 1108 case at this late date, there is nothing to be lost by preserving a federal due process challenge to the statute. Since your client may well be serving a life sentence, it would certainly be reasonable to file a petition for writ of certiorari regarding the constitutionality of section 1108.

Aside from a due process challenge, there are only two conceivable avenues of appellate relief when section 1108 evidence has been admitted at trial: (1) the prosecutor failed to provide sufficient notice of the propensity evidence; and (2) the evidence should have been excluded under Evidence Code section 352. As will be discussed below, the first theory will almost never prevail, but there is hope under section 352 in an appropriate case.

Section 1108, subd. (b) provides that the prosecutor must disseminate written discovery to the defense "at least 30 days before the scheduled date of trial or at such later time as the court may allow for good cause." If the prosecutor provided late discovery and defense counsel objected, this is certainly a potentially worthy issue for appeal. Of course, the strength of the issue will depend upon the record made below (i.e. if the prosecutor had no excuse for failing to provide timely discovery, the court may have erred in allowing use of the evidence).

It should be noted that California law specifically provides that evidence may be excluded for a willful discovery violation. (Penal Code section 1054.5, subd. (b); People v. Hammond (1994) 22 Cal.App.4th 1611, 1623-1624.) Thus, if the prosecutor has played fast and loose, a viable issue may exist. However, it is highly unlikely that an appellate court will find reversible error due to a discovery violation absent an unusually egregious set of facts. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1747; "prohibiting the testimony of a witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and of willful conduct.")

Section 1108, subd. (a) specifically provides that otherwise admissible propensity evidence may be rendered "inadmissible pursuant to Section 352." In exercising its discretion under section 352, the trial court is to consider several factors:

"Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta, supra, 21 Cal.4th 903, 917.)

Obviously, every section 352 issue must be litigated with reference to the details of the case. However, given the highly inflammatory nature of propensity evidence, a persuasive argument can often be made that the trial court erred in admitting certain evidence. Although existing case law is not particularly helpful, there is at least one Court of Appeal opinion which demonstrates the manner in which a section 352 claim should be made.

In People v. Harris (1998) 60 Cal.App.4th 727, the defendant was employed as a mental health nurse. He was accused of committing various sexual touchings of two female patients. Defendant relied on the defense of consent as to one woman and denied that he committed any acts against the second woman. Over a section 352 objection, the prosecutor was allowed to introduce a "sanitized" version of the facts underlying the defendant's 1972 conviction for first degree burglary with great bodily injury. Essentially, the jury learned that the police went to the home of a 23 year old woman and found that she was bleeding from the vagina. The defendant had blood on his penis and underwear.

In holding that the evidence should have been excluded under section 352, the Harris court made several findings: (1) the evidence was highly inflammatory since it included a violent attack on a person whom the jury would have presumed to be a stranger to the defendant; (2) the jury would have been confused since the defendant was convicted of burglary instead of rape; (3) the crime was remote since it was 23 years old; and (4) the evidence was not probative. (Harris, supra, 60 Cal.App.4th at pp. 737-741.) Regarding the last factor, the court reasoned:

"The prior conduct evidence is so totally dissimilar to the current allegations that the trial court's finding that it was very probative fails to answer the question: Probative of what? The trial court pointed to the fact all 3 women were Caucasian and in their 20's or 30's. These 'similarities' are not significant. The defendant is also Caucasian and the '20's or 30's' is a wide age group that includes the majority of the victims of sexual assaults. This altered version of a 23-year-old act of inexplicable sexual violence while heavy with 'undue prejudice' and dangerous in the hands of a jury was not particularly probative of the defendant's predisposition to commit these 'breach of trust' sex crimes." (Harris, supra, 60 Cal.App.4th at pp. 740-741, emphasis in original.)

As the foregoing quote demonstrates, a key factor in a persuasive section 352 argument is any significant degree of dissimilarity between the propensity evidence and the present offense. In Harris, there was a vast difference between the egregious prior crime (a vicious rape) and the present crimes (non-violent touchings of the breasts and vagina). Since there are often significant factual distinctions between sex crimes, Harris shows that a viable section 352 argument can often be made.

The central point concerning any section 352 analysis is that defense counsel must pay close attention to the facts. Even the worst record will include some facts which are helpful. For example, if the present and past crimes are fairly similar, it may be that the prior offense is remote in time. Or, it might be that the defendant escaped conviction in the past. (People v. Ewoldt (1994) 7 Cal.4th 380, 405; the prejudicial effect of character evidence is heightened if the defendant's "uncharged acts did not result in criminal convictions.") By massaging the positive facts in a record, counsel can often make a credible section 352 argument.

In so doing, it should be emphasized that sex crimes quite naturally evoke strong emotional reactions in many jurors. Since one of the purposes of section 352 is to protect a party from emotional bias (People v. Branch (2001) 91 Cal.App.4th 274, 286), it goes without saying that there are many cases where evidence of a prior sex offense is quite simply too evocative to be admissible.

Aside from a standard section 352 claim, it should not be forgotten that defense counsel has a duty to advocate for "changes in the law if argument can be made supporting change." (People v. Feggans (1967) 67 Cal.2d 444, 447.) In a proper case, the creative use of existing case law may provide for a basis to change section 352 law as it relates to propensity evidence.

In People v. Wilson (1992) 3 Cal.4th 926, the Supreme Court reaffirmed the longstanding rule that evidence of a defendant's poverty is per se inadmissible under section 352 in a theft case. (Id., at pp. 938-939.) The rationale for this rule is that "reliance on poverty alone as evidence of motive is deemed unfair to the defendant, and the probative value of such evidence is considered outweighed by the risk of prejudice. [Citations.]" (Id., at p. 939.) This rule of per se exclusion could conceivably be extended to some sex cases. A hypothetical will illustrate the point.

Assume that a 12 year old girl told the police in 1987 that the defendant raped her. At that time, the police investigated the allegation and interviewed a woman who provided an alibi for the defendant. As a result, no charges were filed. However, in a present prosecution, the People propose to call the now 27 year old woman to testify about the 1987 incident. In the meantime, the defendant's alibi witness cannot be found.

On these facts, it can be argued that the evidence should be per se inadmissible under section 352. In 1987, the government had a full and fair opportunity to prosecute the defendant. However, it failed to do so. Given the government's inaction, it is quite simply too late for this highly prejudicial evidence to be used. (See People v. Ellis (1987) 195 Cal.App.3d 334, 345-346; fn. 4; defendant is estopped to complain about an illegal plea bargain since "the passage of time will . . . make it more difficult for the People to carry their burden of proving the criminal conduct at issue.")

As the hypothetical reveals, there may be situations where it is simply unfair to allow admission of propensity evidence involving sex crimes. Thus, defense counsel should not be hesitant to seek expansion of those types of evidence which are per se inadmissible under section 352. (People v. Wilson, supra, 3 Cal.4th 926, 938-939.)

A.	If the Prosecution Is Allowed to Produce Propensity Evidence under Section 1108, the Defense May Rebut the Evidence by Introducing Character Evidence That the Defendant Has Not Committed Sexual Assaults under Similar Circumstances.

Oftentimes, a sexual assault trial will be a credibility contest between the complainant and the defendant. In order to enhance the credibility of the complainant, the prosecution will adduce section 1108 evidence if it is available. If section 1108 testimony is heard by the jury, the defense is allowed to rebut the evidence by producing evidence that the defendant has not committed sexual assaults even though he had an opportunity to do so.

People v. Callahan (1999) 74 Cal.App.4th 356 establishes this conclusion. In Callahan, the defendant was charged with child molestation. Pursuant to Evidence Code section 1108, the prosecutor adduced evidence that the defendant had committed other acts of child molestation. In order to counter this evidence, defendant sought admission of the testimony of other children to show that he had not molested them even though he had the opportunity to do so. The Court of Appeal held that the proffered evidence was admissible. (Id., at pp. 374-379.)

In most cases, this type of evidence can be found by a thorough defense attorney. After all, even the most sociopathic individuals do not commit crimes on a daily basis. Thus, a solid investigation should usually turn up some defense witnesses who can testify that the defendant did not sexually assault them when they were alone.

II.	THE DEFENDANT IS ENTITLED TO ATTACK THE CREDIBILITY OF THE COMPLAINANT WITH ALL RELEVANT IMPEACHING EVIDENCE.

The primary issue in most criminal trials is whether the alleged victim is a credible witness. This is particularly true in sexual assault cases where the credibility of the complainant is often the only issue. Given this reality, the cases are legion where defense counsel have sought to destroy a complainant's credibility by showing that she told false stories about unrelated incidents. (Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, 1273; People v. Adams (1988) 198 Cal.App.3d 10, 18; People v Wall (1979) 95 Cal.App.3d 978, 983-989.)

This type of impeaching evidence is critical to the defense since "[t]he fact that a witness stated something that is not true as true is relevant on the witness's credibility whether she fabricated the incident or fantasized it." (People v. Franklin (1994) 25 Cal.App.4th 328, 335, overruled on another point in Franklin v. Henry, supra, 122 F.3d 1270.) Given the importance of such evidence, it is manifest that defense counsel has a duty to conduct a diligent investigation in search of witnesses who will testify to the complainant's lack of credibility. (People v. Pope (1979) 23 Cal.3d 412, 425; defense counsel has a duty to investigate all defenses of fact.)

It is important to note that Proposition 8 has greatly broadened the parameters of admissible impeachment evidence. As the Supreme Court has held, Proposition 8 effected a repeal of almost all of the Evidence Code sections which formerly governed the admissibility of impeachment evidence. (People v. Harris (1989) 47 Cal.3d 1047, 1080-1082.) Thus, so long as impeaching evidence is relevant and reliable, it must be admitted subject to any limitation found in section 352. (Ibid.)

In a sexual assault case, there is often only the testimony of the complainant and the defendant. Since the complainant's credibility is the key to the case, a skillful defense lawyer will marshal all of the impeaching evidence which can possibly be obtained. The more the better. (See People v. Randle (1982) 130 Cal.App.3d 286, 292-294; defendant was entitled to impeach the complainant with evidence of her reputation for drunkenness, dishonesty and for being a thief.)

The best form of impeachment is evidence that the complainant has previously told a false story about being sexually assaulted. This type of evidence goes to the heart of the case and its exclusion is bound to be prejudicial error. (Franklin v. Henry, supra, 122 F.3d 1270, 1273; People v. Adams, supra, 198 Cal.App.3d 10, 19.)

People v. Wall, supra, 95 Cal.App.3d 978 is the paradigmatic case in this genre. There, the defendant was charged with raping an 18 year old woman. The defense was that a sex act had not occurred. In order to impeach the complainant, the defense sought to call her former boyfriend who would have testified that she had threatened to make a false claim of rape against him. In reversing the trial court's exclusion of the witness, the Court of Appeal held that the evidence was admissible since it tended "to disprove the truthfulness" of the complainant's testimony. (Id., at p. 989; accord, People v. Adams, supra, 198 Cal.App.3d 10, 16-19; judgment reversed where the trial court refused to admit evidence of prior false claims of rape.)

Notwithstanding the general rule that impeachment evidence is admissible, Proposition 8 left Evidence Code section 782 in place. In relevant part, section 782 provides that "evidence of sexual conduct of the complaining witness" is admissible to attack credibility when the defendant files a written motion supported by an affidavit which makes an offer of proof regarding the relevance of the evidence. Three primary points must be made regarding section 782.

First, section 782 applies only in those instances where the defendant seeks to introduce "evidence of sexual conduct." (Section 782, subd. (a).) Thus, there is no need to comply with section 782 when the defense seeks to admit evidence of false statements made by the complainant. (People v. Franklin, supra, 25 Cal.App.4th 328, 334-335; but see People v. Casas (1986) 181 Cal.App.3d 889, 895; solicitation of an act of prostitution falls within section 782 since the "willingness to engage in sexual intercourse" is encompassed in the statute.)

Second, section 782 only allows for the admission of credibility evidence. Under Evidence Code section 1103, subd. (c) (colloquially known as the rape shield law), evidence of a complainant's prior sexual relations is strictly inadmissible for the truth of the matter (i.e. that the complainant consented to sex with the defendant or anyone else). (See People v. Chandler (1997) 56 Cal.App.4th 703, 707-708.)

Third, section 782 is not a rule of exclusion. So long as the proffered evidence is truly relevant to an issue in the case, the court must allow its admission if there is compliance with the statutory procedure.

People v. Randle, supra, 130 Cal.App.3d 286 illustrates this principle. In Randle, the complainant alleged that the defendant had forced her to orally copulate him in a bathroom at the Embarcadero Center. The defendant testified that the act was consensually performed for money. On a motion for new trial, the defense presented numerous declarations establishing that the complainant had previously performed sex acts for compensation. In holding that a new trial was in order, the Court of Appeal observed that "the evidence of her lack of chastity and of soliciting drinks or money for sexual acts goes to the issue of credibility." (Id., at p. 294.) Thus, the evidence would be admissible at a new trial since section 782 merely provides "the procedure to be used for the offer of proof to attack" the complainant's credibility. (Ibid.)

As the foregoing cases reveal, impeachment of the complainant is a critical factor in any sexual assault trial. If the trial court improperly excludes credibility evidence, an excellent issue will be available for appeal.

III.	APPELLATE COUNSEL SHOULD BE ESPECIALLY ALERT TO THE IMPROPER ADMISSION OF OPINION TESTIMONY BY A SART NURSE.1

In the 1980's, California counties developed Sexual Assault Response Teams (SART). These teams provide services in the form of examination and treatment of reported victims of sexual assault. Typically, a professionally trained nurse will perform an examination of a person who has indicated that he or she has been the victim of a sexual assault.

A SART nurse is often called to testify to his observations of the complainant's physical condition. Such testimony might consist of observations that the victim was bruised or that there were tears or cuts to a sexual organ. Without doubt, this type of testimony is entirely appropriate. However, the problem is that SART nurses often give testimony which is far beyond their expertise and which is patently inadmissible.

The problem is further exacerbated since many defense lawyers appear to be completely unequipped to render proper objections. In recent years, there have been countless jury trials where defense counsel sat mute as SART nurses offered improper opinions. Given this poor performance by many trial lawyers, it is incumbent upon appellate counsel to closely scrutinize SART testimony. In so doing, viable claims of ineffective assistance of counsel will be uncovered.

A frequent opinion offered by SART nurses is that the complainant's injuries are "consistent" with the allegation of sexual assault. This opinion testimony is flatly inadmissible.

Under California law, "the qualifications of an expert must be related to the particular subject upon which he is giving expert testimony." (People v. Hogan (1982) 31 Cal.3d 815, 852, overruled on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) Thus, while a criminalist might be qualified to testify concerning whether a certain fluid is blood, he is not qualified to testify as a "spatter" expert absent a showing of his special knowledge and training on that subject. (Id., at pp. 852-853.)

In the case of a SART nurse, the witness usually has absolutely no training regarding the genesis of physical injury to a sexual organ. While the nurse is certainly qualified to testify about the appearance of an injury, he ordinarily has no special knowledge regarding whether a cut might be inflicted by consensual sex rather than rape. Thus, unless the prosecutor has laid a foundation concerning the SART nurse's training or knowledge of expert studies on the genesis of injuries, he may not offer an opinion that a particular injury is "consistent" with sexual assault.

On this last point, it must be emphasized that there are few scientific studies which purport to correlate certain physical injuries with the conclusion that they were inflicted by sexual assault. Absent such studies, no witness should be allowed to testify that an injury is "consistent" with sexual assault. (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 590; "in order to qualify as 'scientific knowledge,' an inference or assertion must be derived by the scientific method;" Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135; "[w]here an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.]")

Aside from a lack of foundation objection, a SART nurse's opinion testimony is inadmissible for a more fundamental reason. As a general proposition, a witness is barred from offering an opinion regarding the defendant's guilt or innocence. (People v. Torres (1995) 33 Cal.App.4th 37, 46-47.) Thus, even an expert is precluded from testifying that a witness has been truthful. (People v. Johnson (1993) 19 Cal.App.4th 778, 786-791; People v. Sergill (1982) 138 Cal.App.3d 34, 39-40.)

When a SART nurse testifies that the complainant's version of events is "consistent" with sexual assault, the testimony is a thinly veiled opinion that the complainant is a credible witness. Indeed, the entire SART exam proceeds on the assumption that the complainant is telling the truth. Viewed from this perspective, the SART nurse should not be allowed to testify to an opinion which implicitly advises the jury that the complainant is credible. (See People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099-1100; trial court erred in allowing expert testimony that the complainant was a victim of child molestation.)

In short, it is trial counsel's duty to ensure that the testimony of a SART nurse is confined to a proper purpose. If proper objections were not made below, a claim of ineffective assistance of counsel should be advanced.

IV.	PROPERLY APPLIED, THE FRESH COMPLAINT RULE ALLOWS FOR THE ADMISSION OF A VERY LIMITED CLASS OF EVIDENCE.

Under California law, the prosecution is entitled to introduce "evidence that the alleged victim of a sexual offense disclosed or reported the incident to another person shortly after its occurrence. . . ." (People v. Brown (1994) 8 Cal.4th 746, 748.) The alleged victim's extrajudicial statement "is admissible for a limited, nonhearsay purpose - namely, simply to establish that such a complaint was made - in order to forestall the trier of fact from inferring erroneously that no complaint was made, and from further concluding, as a result of that mistaken inference, that the victim in fact had not been sexually assaulted. [Citation.]" (Id., at pp. 748-749.)

In determining whether to admit a "fresh complaint" made by the alleged victim, the trial court must apply the "ordinary standard of relevance. [Citation.]" (Brown, supra, 8 Cal.4th at p. 763.) In so doing, the court should consider whether the "complaint was made immediately following the alleged assault or was preceded by some delay" and "whether the complaint was volunteered spontaneously by the victim or instead was prompted by some inquiry or questioning from another person." (Ibid.) However, neither of these factors is dispositive. (Ibid.)

It is essential to note that "only the fact that a complaint was made, and the circumstances surrounding its making" are admissible. (Brown, supra, 8 Cal.4th at p. 760.) Since the evidence is not admissible for the truth of the matter asserted, "the details of the victim's extrajudicial complaint" may not be introduced. (Id., at p. 763.) Upon request, it is the court's duty to "instruct the jury to consider such evidence only for the purpose of establishing that a complaint was made, so as to dispel any erroneous inference that the victim was silent, but not as proof of the truth of the content of the victim's statement. [Citations.]" (Id., at p. 757.)

The lesson to be learned about the fresh complaint rule is that it is of very limited application. It is only the mere fact that a complaint was made that is admissible. Thus, a vigilant trial attorney will carefully object when the prosecutor seeks to elicit an extrajudicial statement which describes the "details" of the alleged offense. If there has been a proper objection below, a strong issue is presented for appeal. The Supreme Court has so indicated: "[I]f the details of the victim's extrajudicial complaint are admitted into evidence, even with a proper limiting instruction, a jury may well find it difficult not to view these details as tending to prove the truth of the underlying charge of sexual assault . . . ." (Brown, supra, 8 Cal.4th 746, 763.)

Of course, it is often the case that trial counsel will have failed to make a proper objection. In this circumstance, it will be necessary to advance a claim of ineffective assistance of counsel.

V.	ALTHOUGH THE PROSECUTION CAN PRESENT EXPERT TESTIMONY TO DISABUSE THE JURORS OF MYTHS WHICH THEY MAY BELIEVE, SUCH TESTIMONY MAY NOT BE USED AS SUBSTANTIVE EVIDENCE OF GUILT.

In 1984, the California Supreme Court discussed the then fairly recent concept of rape trauma syndrome. (People v. Bledsoe (1984) 36 Cal.3d 236, 247.) Generally speaking, the syndrome serves to explain the physical, psychological and emotional reactions which are common to rape victims. (Id., at pp. 241-242, fn. 4.) Expert testimony concerning the syndrome is not admissible to prove that the alleged victim was raped. (Id., at p. 251.) However, the expert may testify to disabuse "the jury of some widely held misconceptions about rape and rape victims, so that it may evaluate the evidence free of the constraints of popular myths. [Citations.]" (Id., at pp. 247-248.) One such myth is that rape victims do not delay in reporting the crime. (Id., at p. 247.)

Following Bledsoe, the Supreme Court has also held that an expert witness may testify about the child sexual abuse accommodation syndrome (CSAAS). (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301.) As is the case with rape trauma syndrome evidence, "expert testimony on the common reactions of child molestation victims is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident - e.g., a delay in reporting - is inconsistent with his or her testimony claiming molestation. [Citations.]" (Ibid, fn. omitted.)

Consistent with the foregoing principles, the Supreme Court has indicated that an expert witness may also testify about related matters in a sexual assault case. In McAlpin, the defendant was charged with molesting his girlfriend's eight year old daughter. Although the girlfriend corroborated the daughter's account, she did not contact the police. On these facts, the Supreme Court held that the prosecutor properly called an expert witness to testify that: (1) parents sometimes do not report the molestation of their children; and (2) there is no "profile" of a typical child molester. (McAlpin, supra, 53 Cal.3d at pp. 1298-1304.) The testimony was not admitted to prove that a molestation had occurred but only to: (1) rehabilitate the girlfriend's credibility; and (2) disabuse the jury of false stereotypes concerning the identity of child molesters. (Ibid.)

As a preliminary observation about Bledsoe and McAlpin, it is critical to note that they rest on the assumption that jurors actually believe certain falsehoods (i.e. that all rape victims promptly call the police and that all child molesters are gay or alcoholic or ragged old men). (McAlpin, supra, 53 Cal.3d at pp. 1302-1303; Bledsoe, supra, 36 Cal.3d at p. 247.) However, there is a serious question as to whether this assumption is correct. While the Supreme Court purported to rely on "studies" which supported its assumption, one would think that the voir dire of jurors would be a far more objective method of determining if jurors hold stereotypical and false ideas.

Indeed, a recent Court of Appeal decision implicitly suggests that the Bledsoe and McAlpin assumption should be reexamined. In People v. Robbie (2001) 92 Cal.App.4th 1075, the prosecutor called an expert witness to testify about the characteristics of people who commit rapes. In attempting to support the judgment, the Attorney General contended that the evidence was admissible to "disabuse the jury of misconceptions about rapists." (Id., at p. 1085.) In response, the Court of Appeal noted:

"Defense counsel did not challenge the existence of public misconceptions about sex offenders, requiring the admission of expert testimony. Evidence Code section 801, subdivision (a) requires that expert testimony be '[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' The presupposition that the public shares the mistaken view articulated by the Attorney General is certainly debatable. Because no objection on this ground was made, however, the issue was never joined at the trial level." (Id., at p. 1086, fn. 1, emphasis added.)

It has been almost twenty years since the "syndrome" experts have been allowed to testify. Given the intervening proliferation of media discussion about sexual assault, one would think that the strength of false stereotypes would have receded. Thus, it may be time to challenge the validity of the Bledsoe - McAlpin assumption.

In addition, it is worth noting that three states have precluded the use of child sexual abuse accommodation syndrome evidence. (Newkirk v. Commonwealth (1996) ___ Ky. ___ [937 S.W.2d 690]; State v. Bolin (1996) ___ Tenn. ___ [922 S.W.2d 870]; Commonwealth v. Dunkle (1992) 529 Pa. 168 [602 A.2d 830]; see also Franklin v. Henry, supra, 122 F.3d 1270, 1273; favorably citing Dunkle.)2 Thus, California should be encouraged to join these progressive jurisdictions.

Assuming that California does not abrogate the present rule, appellate counsel must carefully review the record to ensure that expert testimony was carefully limited to its proper purpose. If the prosecutor used the evidence as substantive evidence of guilt and there was no objection below, a claim of ineffective assistance of counsel should be brought.

Similarly, trial counsel has a duty to request the standard limiting instruction concerning the use of expert testimony regarding the various "syndromes" (CALJIC No. 10.64). If there was no request for the instruction, a claim of ineffective assistance of counsel may lie. (United States v. Myers (7th Cir. 1990) 892 F.2d 642, 648-649; counsel erred by failing to request a limiting instruction on the use of a co-defendant's statement; see also People v. Housley (1992) 6 Cal.App.4th 947, 958-959; trial court must give No. 10.64 sua sponte.)

Finally, appellate counsel must be alert to any attempt by the government to expand the use of expert testimony. Recently, the First District put a halt to one attempted expansion.

In People v. Robbie, supra, 92 Cal.App.4th 1075, the prosecutor called a Department of Justice special agent, Sharon Pagaling, to testify regarding the characteristics of rapists. The evidence was proffered for the purpose of showing that the defendant's behavior was consistent with that of a rapist. In reversing the judgment, the Court of Appeal found that the expert's testimony constituted improper "profile" evidence (i.e. that the defendant was guilty since his conduct matched that of the typical rapist). (Id., at pp. 1083-1087.) In reaching this conclusion, the court carefully distinguished McAlpin:

"Pagaling properly could have testified that rapists behave in a variety of ways and that there is no 'typical rapist.' Had she done so her testimony would have been similar to that permitted in McAlpin. The problem here is that Pagaling did not merely attack the stereotype by explaining that there is no 'typical sex offender.' Instead, she replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly matched defendant's." (Robbie, supra, 92 Cal.App.4th at p. 1087.)

As Robbie demonstrates, expert testimony must be closely scrutinized. Unless the evidence was carefully limited to the parameters specified in Bledsoe and McAlpin, a meritorious issue is available for appeal. (See People v. McFarland (2001) 78 Cal.App.4th 489, 493-497; judgment reversed where a government psychiatrist testified to his opinion that the defendant's act of touching a child was motivated by a sexual intent.)

Finally, there may be some sex cases where the prosecution seeks to introduce expert testimony that the complainant suffers from battered women's syndrome (BWS). Insofar as the Legislature has specifically authorized the use of this type of evidence (Evidence Code section 1107), there is little that the defense can do to challenge its admissibility assuming that a foundation is laid that the complainant is in fact a battered woman. (People v. Gomez (1999) 72 Cal.App.4th 405, 415-418; BWS evidence was improperly allowed where there was no evidence that the victim had previously been assaulted; but see People v. Williams (2000) 78 Cal.App.4th 1118, 1126-1130; BWS evidence is admissible even if there has been no prior assault; People v. Gadlin (2000) 78 Cal.App.4th 587, 593-594; one prior assault was sufficient to allow admission of BWS evidence.) Like the other syndromes, BWS evidence may not be adduced as substantive evidence of the defendant's guilt. (Evidence Code section 1107, subd. (a).) However, the evidence may be admitted to shore up the credibility of the complainant. (People v. Gadlin, supra, 78 Cal.App.4th 587, 594.) In such a case, a proper limiting instruction should be given. (People v. Moran (1997) 58 Cal.App.4th 1210, 1216-1217.)

VI.	THE DEFENSE IS PERMITTED TO PRESENT EXPERT AND LAY OPINION TESTIMONY THAT THE DEFENDANT DOES NOT HAVE THE CHARACTER OF A SEXUAL ASSAILANT.

In a sex case, the nature of the charge provides the prosecution with a head start in obtaining a conviction. In order to counter this reality, it is incumbent upon the defense to marshal as much helpful evidence as is possible. To this end, the California Supreme Court has held that the defense is allowed to introduce expert and lay opinion evidence that the defendant is not a sexual assailant.

In People v. Stoll (1989) 49 Cal.3d 1136, the defendant was charged with child molestation. He sought to call a psychologist who had performed tests on him. Based on the tests and his interviews with the defendant, the psychologist was prepared to testify that the defendant did not bear the characteristics of a child molester. The Supreme Court held that the psychologist's expert opinion was admissible character evidence which the jury could consider. (Id., at pp. 1152-1154.)

Several years later, the Supreme Court reached the same result with respect to lay opinions. In People v. McAlpin, supra, 53 Cal.3d 1289, the defense sought to call the defendant's friends who were prepared to testify that he was not someone who would molest children. The Supreme Court held that such testimony is admissible so long as it is based on the witness' "personal observation of defendant's 'conduct with children'; . . . ." (Id., at pp. 1308-1309.) While Evidence Code section 1102 precludes the witness from testifying to specific instances of the defendant's behavior, the witness' opinion is admissible. (Id., at pp. 1309-1310.)3

A second aspect of McAlpin is of great help to the defense. In excluding the testimony of the defense witnesses, the trial court relied on Evidence Code section 352. The Supreme Court found that this ruling constituted an abuse of discretion since: (1) the evidence could have been quickly presented; and (2) it went to the central issue in the case. (McAlpin, supra, 53 Cal.3d at p. 1310, fn 15.) Thus, McAlpin is powerful authority for the proposition that the trial court may not arbitrarily exclude proffered defense evidence.

In this regard, it must be emphasized that section 352 allows for the exclusion of evidence only when "its probative value is substantially outweighed" by its prejudicial effect. Thus, in a sex case where the defense is trying to prove a negative (i.e. the defendant did not commit the act), the trial court should not use section 352 to exclude defense evidence. (Kessler v. Gray (1978) 77 Cal.App.3d 284, 292; "[w]here the evidence relates to a critical issue, directly supports an inference relevant to that issue, and other evidence does not as directly support the same inference, the testimony must be received over a section 352 objection absent highly unusual circumstances.")

VII.	IN A CHILD MOLEST CASE, THE DEFENSE IS ALLOWED TO PRESENT EVIDENCE THAT THE COMPLAINANT HAD PREEXISTING KNOWLEDGE ABOUT SEXUAL MATTERS.

In child molestation cases, the prosecutor will typically argue that the complainant must have been sexually assaulted since he or she was able to describe sex acts which would otherwise be unknown to a child. In order to counter this argument, defense counsel should marshal evidence regarding the child's preexisting knowledge of sexual matters. This evidence can take several forms.

In some cases, the complainant will have been previously molested by someone other than the defendant. If so, proof of the prior molestation is admissible "to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant." (People v. Daggett (1990) 225 Cal.App.3d 751, 757.) This type of evidence is so pivotal that its exclusion violates a defendant's federal due process right to a fair trial. (LaJoie v. Thompson (9th Cir. 2000) 217 F.3d 663, 668-674.)

In a particular case, the prosecutor might note that the complainant has used sexual terms which are usually unknown to children. If this argument is mounted, the defense is permitted to adduce evidence concerning the sexual language to which the complainant has been exposed. (People v. Burton (1961) 55 Cal.2d 328, 345; see also People v. Santos (1990) 222 Cal.App.3d 723, 739; reversal ordered in a child molest case where the "[d]efendant presented testimony that M. had watched x-rated movies, thus suggesting that she had the knowledge necessary to make up the story.")

Aside from direct evidence concerning the complainant's knowledge of sexual matters, the defendant may also seek to adduce circumstantial evidence about information which might have been imparted in the complainant's home. For example, it is proper to inquire whether a parent has any unusual fears regarding sex.

"If the mother is abnormally oriented toward sexual conduct, and has an abnormal fear of and reaction to sexual relations, she may, quite unconsciously, build up, in her own mind, a quite innocent act or caress into a grievous wrong. Young children are especially suggestible. The inquiries put by such a mother to her daughter may, themselves, implant into the child's mind ideas and details which existed only in the fears and fantasies of the adult. Once implanted, they become quite real in the mind of the child witness and are impervious to cross-examination." (People v. Scholl (1964) 225 Cal.App.2d 558, 563.)

There are a large variety of sources from which a child might obtain information about sexual matters. A resourceful defense attorney should be able to find and produce such evidence in an appropriate case.

VIII.	DEFENSE COUNSEL SHOULD BE EVER VIGILANT IN PROTECTING THE CONFRONTATION CLAUSE AGAINST THE CONSTANT EROSION WHICH IS OCCURRING IN CHILD MOLEST CASES.

Over the last twenty years, the issue of child molestation has become a highly emotional subject of public discussion. As a result, politicians and prosecutors have rushed forward to "protect the children" by enacting several reforms in the law. While these reforms may have been promulgated with the best of intentions, the effect has been to severely erode the Confrontation Clause. Although the reforms have been approved by the courts, defense counsel should nonetheless seek enforcement of the Confrontation Clause to the fullest extent possible.

For present purposes, counsel should be aware of three possible issues which might arise in a particular case: (1) the use of Evidence Code section 1360; (2) the use of Penal Code section 868.5; and (3) the use of videotaped testimony of a child. Each of these issues presents a substantial concern under the Confrontation Clause.

In 1995, the Legislature enacted Evidence Code section 1360. In material part, section 1360 allows for the admission of a hearsay statement made by a child under the age of 12 when the statement describes an act of child abuse. If the child is declared unavailable as a witness, the statement may be admitted if: (1) it contains "sufficient indicia of reliability;" and (2) there is corroboration of the statement. Although section 1360 has been upheld as against a Confrontation Clause challenge (People v. Eccleston (2001) 89 Cal.App.4th 436), several arguments are potentially available when the prosecution uses the statute.

Section 1360, subd. (b) provides that the prosecutor must disclose his intent to rely on a statement "sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to meet the statement." As construed by one Court of Appeal, the provision requires disclosure prior to the beginning of the trial. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1369-1373.) Thus, untimely disclosure may lead to exclusion of the statement. (Ibid.)

Under California law, a witness is "unavailable" when he is suffering from an "existing physical or mental illness or infirmity." (Evidence Code section 240, subd. (a)(3).) Oftentimes, the prosecution will make a bold claim that a child will be harmed if he is required to testify. However, such an assertion is insufficient to establish unavailability. Rather, the prosecution must call an expert witness to establish that the witness is truly at risk if he testifies. (People v. Stritzinger (1983) 34 Cal.3d 505, 514-518; mother's testimony concerning her daughter's mental health was legally insufficient to establish unavailability; but see People v. Alcala (1992) 4 Cal.4th 742, 780; witness' own testimony may demonstrate unavailability.)

Importantly, the prosecutor is not entitled to rely on a bold assertion that a young child is "unavailable" since he is too young to testify. Rather, the witness' incompetence must be established as a matter of fact. (People v. Roberto V., supra, 93 Cal.App.4th 1350, 1368-1369; trial court erred in finding that a four year old child was incompetent without holding a hearing.)

Assuming that the child is truly unavailable as a witness, the prosecutor must still establish the "reliability" of the hearsay statement. Under U.S. Supreme Court authority, the issue of reliability must be determined by a consideration of several factors: (1) the spontaneity and consistent repetition of the statement; (2) the mental state of the declarant; (3) use of terminology unexpected from a child; and (4) lack of motive to fabricate. (Idaho v. Wright (1990) 497 U.S. 805, 821-822; People v. Eccleston, supra, 89 Cal.App.4th 436, 445.) Obviously, these factors must be evaluated on a case-by-case basis. (See People v. Roberto V., supra, 93 Cal.App.4th at pp. 1373-
1377; reversible error found due to admission of unreliable statement.)

Aside from the existing rules regarding section 1360, there is a foundational question which should not be ignored. Notwithstanding the legal fiction that young children can provide credible testimony, any sane adult knows better. Children frequently lie. They do so because there are no consequences from telling a lie and because they do not appreciate the significance of the act of lying. Both science and several celebrated cases reveal this to be true. (See North Carolina v. Kelly (1995) 118 N.C.App. 589 [456 S.E.2d 861]; judgment reversed in infamous "Little Rascals" case where 29 children claimed to have been sexually molested at a day care center and corroboration was non-existent; New Jersey v. Michaels (1993) 264 N.J. Super. 579 [625 A.2d 489], affirmed 136 N.J. 299 [742 A.2d 1372]; judgment reversed where 19 children testified to sexual abuse at a day care center and corroboration was non-existent; see also United States v. Bighead (9th Cir. 1997) 128 F.3d 1329, 1337-1338 (dis. opn. of Noonan, J.); comparing modern child molest cases to the incredible testimony offered at the Salem witch trials; Ceci and Friedman, The Suggestibility of Children: Scientific Research and Legal Implications (2000) 86 Cornell L.Rev. 33, 84, fn. 233; a study of 9000 families in child custody disputes revealed that 33% of the allegations of child sexual abuse were false.)

Given this reality, a zealous trial attorney should elicit expert testimony establishing that child testimony is in fact less reliable than that of an adult. In this way, a test case might thereby be created to challenge the admissibility of hearsay statements made by children.

Pursuant to Penal Code section 868.5, a complainant in a case involving a major sex crime may be accompanied to the witness stand by a support person. If the support person is also a government witness, the support person must testify before the complainant. (Penal Code section 868.5, subd. (c).) Presumably, the support person's testimony will be subject to exclusion if he does not testify before the complainant.

On its face, the only showing required by section 868.5 is that a support person "is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness." (Section 868.5, subd. (b).) According to one court, the showing in a child molest case need only be "perfunctory." (People v. Lord (1994) 30 Cal.App.4th 1718, 1722.) This conclusion is wrong.

As was acknowledged in People v. Adams (1993) 19 Cal.App.4th 412, section 868.5 must be carefully analyzed under the Confrontation Clause since the presence of a support person has a significant impact "on jury observation of demeanor." (Id., at pp. 437-441.) Thus, before a support person is allowed to accompany the complainant to the witness stand, the government must make a specific showing that the complainant would be traumatized without the presence of a support person. (Id., at pp. 443-444.)

Obviously, Adams requires a substantial evidentiary showing. Defense counsel should always hold the prosecution to its burden of proof. (But see People v. Johns (1997) 56 Cal.App.4th 550, 554; People v. Lord, supra, 30 Cal.App.4th 1718, 1721-1722; questioning validity of Adams.)

Occasionally, the prosecutor will seek to use the videotaped testimony of a child. The U.S. Supreme Court has upheld this procedure so long as there is a showing that the child would be traumatized if he was required to testify in the presence of the defendant. (Maryland v. Craig (1990) 497 U.S. 836, 856-857.) However, before the procedure may be used, the prosecutor must make an actual showing that "the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. [Citations.]" (Id., at p. 856.) Thus, as is the case with the support person statute, defense counsel should rigorously enforce the evidentiary showing required by the law.

Finally, it must be emphasized that the erosion of the Confrontation Clause continues on a daily basis. In at least one jurisdiction, the Craig rule has been extended to cover government witnesses "whose abuse is neither the subject of the prosecution nor will be the subject of her testimony." (Marx v. Texas (1999) 528 U.S. 1034, 1035 (Scalia, J.; dissenting from a denial of certiorari.) Given our historical knowledge that the Bill of Rights is constantly under attack, defense counsel should strongly protest any further dimunition in the protection afforded by the Confrontation Clause.

IX.	WHENEVER POSSIBLE, DEFENSE COUNSEL SHOULD CATEGORIZE AN EVIDENTIARY ERROR AS BEING ONE OF FEDERAL CONSTITUTIONAL STATURE.

As is beyond dispute, a claim of federal constitutional error obtains a much more favorable standard for harmless error analysis than does a claim of state error. Moreover, if a federal claims fails on a state appeal, it may be taken to federal court whereas a state error may not. Given these realities, one of the primary duties of defense counsel is to raise a claim of error under the federal Constitution if it is at all possible to do so.

As a preliminary point, it should be noted that trial attorneys often fail to specify that their objections are being made under the federal Constitution. As a result, the appellate court will find that any objection under the federal Constitution has been waived. (See People v. Gordon (1990) 50 Cal.3d 1223, 1254, fn. 6; admission of extrajudicial statement was reviewed only under the Watson standard since a "federal constitutional right of confrontation" objection was not made at trial.)

Given the appellate courts' inclination to find waiver, it is incumbent upon appellate counsel to raise a claim of ineffective assistance of trial counsel when an adequate federal objection was not made at trial. In this way, a federal claim can be preserved when it would otherwise be lost.

As a final procedural point, it should be emphasized that a claim may not be raised in federal court unless it was expressly raised in state court as a federal claim. (Duncan v. Henry (1995) 513 U.S. 364, 366.) Thus, defense counsel should be sure to specifically cite to both the federal Constitution and U. S. Supreme Court cases on a state appeal. Absent such citations, a federal court will refuse to entertain the case. (Id., at pp. 364-366; Supreme Court holds that federal relief is not available since the defendant relied solely on the Watson standard on his California appeal.)

In raising a federal claim based on evidentiary error, the constitutional foundation is found in either the Sixth Amendment's Compulsory Process and Confrontation Clauses or the Fourteenth Amendment's Due Process Clause. (See Crane v. Kentucky (1986) 476 U.S. 683, 690.) Under these provisions, a state court commits federal constitutional error when it excludes highly relevant and necessary defense evidence. (Ibid., see also Rock v. Arkansas (1987) 483 U.S. 44, 53-56.) Importantly, a federal claim may be made even if no error was made under state law.

Chambers v. Mississippi (1973) 410 U.S. 284 illustrates this principle. There, the defendant sought to admit a confession made by a third party. Under state law, the confession was inadmissible under the hearsay rule. Notwithstanding this well established state rule, the Supreme Court held that exclusion of the confession constituted a violation of the Due Process Clause.

"The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Chambers, supra, 410 U.S. at p. 302.)

Chambers establishes a clear rule. So long as the defendant can demonstrate that he cannot receive a fair trial absent the admission of important evidence, the federal Constitution is implicated. This is so regardless of the exact form which the evidence takes. (Rock v. Arkansas, supra, 483 U.S. 44, 56-62; exclusion of defendant's hypnotically enhanced testimony was violative of her constitutional right to testify; Crane v. Kentucky, 476 U.S. 683, 687-692; exclusion of evidence regarding the circumstances surrounding the defendant's confession violated his right to confront the witnesses against him.)

A case handled by SDAP Executive Director Michael Kresser further illustrates the usefulness of the foregoing authorities. In Franklin v. Henry, supra, 122 F.3d 1270, the defendant was charged with molesting a friend's daughter. In order to impeach the daughter's testimony, the defendant sought to introduce her prior false claim that her mother had molested her. Although it found that the trial court had erred by excluding the evidence, the Sixth District declared the error to be harmless under Evidence Code section 354. (People v. Franklin, supra, 25 Cal.App.4th 328, 336-337.) Importantly, the court failed to address the defense contention that the error rose to the level of a federal constitutional violation. Thankfully, the Ninth Circuit did not ignore the claim. Instead, finding that "[e]xclusion of the evidence deprived Franklin `of the basic right to have the prosecutor's case encounter and "survive the crucible of meaningful testing"' [citations]," the court reversed the judgment. (Franklin, supra, 122 F.3d at p. 1273.)

As Franklin shows, a diligent effort can sometimes yield a dramatic victory. In Franklin, a claim of evidentiary error was carefully federalized in state court. For reasons unknown, the state court failed to acknowledge the federal nature of the error. Nonetheless, the Ninth Circuit later granted relief. While most of our clients will not be as lucky as Mr. Franklin, appellate counsel should still use the case as an inspirational model.

Although the law is much less certain in this area, it is also possible to argue that the erroneous admission of irrelevant and prejudicial evidence may constitute a federal due process violation. (See Estelle v. McGuire (1991) 502 U.S. 62, 68-70; court considers such an issue.) A case from the Ninth Circuit provides an example of this type of error.4

In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the defendant was charged with murdering his mother who had died after her throat was slit. The forensic evidence showed that almost any kind of knife could have inflicted the fatal wound. At trial, the government presented evidence that the defendant: (1) had owned a Gerber knife in the past (but not at the time of the crime); (2) was a knife aficionado; (3) wore a knife in the past; and (4) scratched "Death is his" on his closet door with a knife. After finding that this evidence was completely irrelevant, the Ninth Circuit reversed the defendant's conviction.

"His was not the trial by peers promised by the Constitution of the United States, conducted in accordance with centuries-old fundamental conceptions of justice. It is part of our community's sense of fair play that people are convicted because of what they have done, not who they are. Because his trial was so infused with irrelevant prejudicial evidence as to be fundamentally unfair, McKinney is entitled to the conditional writ of habeas corpus that the district court awarded him." (McKinney v. Rees, supra,, 993 F.2d at p. 1386, fn. omitted, emphasis in original.)

As McKinney makes clear, a defendant may be deprived of due process when the government seeks to shore up a weak case with a dose of highly prejudicial evidence. Thus, in an appropriate case, McKinney can serve as persuasive authority in support of a claim of federal error. (See also Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769, 773-777.)	Finally, a clear case of federal constitutional error exists when the defense is denied the opportunity to confront a government witness at trial. Thus, whenever the prosecutor improperly relies on an extrajudicial statement as substantive evidence of guilt, the Sixth Amendment requires application of the federal standard for prejudice. (Idaho v. Wright, supra, 497 U.S. 805, 826-827.)

X.	REGARDLESS OF THE APPLICABLE HARMLESS ERROR TEST, THERE ARE A NUMBER OF FACTORS WHICH MAY BE USED TO SHOW PREJUDICE IN A PARTICULAR CASE.

After handling appeals for a number of years, a defense attorney will become familiar with the appellate courts' mantra that the errors were harmless because the evidence was "overwhelming." While the evidence is truly overwhelming in some cases, the reality is that many jury trial cases involve shaky government witnesses, weak circumstantial evidence or some other evidentiary deficiency. In these cases, it is imperative that defense counsel focus on the objective factors found in the record which prove that the case against the defendant was not overwhelming. Although the following examples are not intended to be exhaustive, they are indicative of some of the factors which will enable a defendant to obtain a reversal.

At the outset, it must be emphasized that the primary goal of defense counsel is to dissect the evidentiary weaknesses in the government's case. Thus, if a government witness was granted immunity or was impeached in a substantial way, this point should be strongly discussed. Similarly, if there were inconsistencies in the government's case, this reality should be amply argued. Indeed, any and all weaknesses in the government's case must be carefully and precisely laid out for the reader.

By the same token, appellate counsel should also discuss the strength of the defense evidence. If no such evidence was presented, counsel should set forth the contents of defense counsel's closing argument. In so doing, counsel can hopefully show that the defense presented a relatively credible theory to the jury. If this goal is achieved, it will, of course, make it very difficult for the appellate court to legitimately conclude that the government's evidence was "overwhelming."

As a final preliminary point, it is important to note that some errors are better than others. For example, the California Supreme Court has repeatedly held that the improper admission of uncharged sex offenses is so prejudicial as to require reversal. (People v. Alcala (1984) 36 Cal.3d 604, 635-636; People v. Thomas (1978) 20 Cal.3d 457, 470; People v. Kelley (1967) 66 Cal.2d 232, 245.) Thus, appellate counsel should strive to find those case authorities which depict a particular error as being one which necessarily involves a high degree of prejudice. (See People v. Robbie, supra, 92 Cal.App.4th 1075, 1088; admission of profile evidence was reversible error "[g]iven the highly prejudicial nature of the expert's testimony . . . .")

Turning to the case specific factors which may serve to show prejudice, the most obvious indication of a close case is lengthy jury deliberations. (People v. Cardenas (1982) 31 Cal.3d 897, 907; six hours of deliberations is evidence of a close case; Lawson v. Borg (9th Cir. 1995) 60 F.3d 608, 612; nine hours of deliberations "deemed protracted.") While the Supreme Court has indicated that lengthy deliberations are not significant in a complex case (People v. Cooper (1991) 53 Cal.3d 771, 837), such deliberations in a short trial can only mean that the jurors found some deficiency in the government's case. Thus, when the jury is troubled by the case, the appellate court is required to take heed. (Sullivan v. Louisiana (1993)508 U.S. 275, 279; harmless error analysis requires the court to look at the impact of an error on the jury; see also People v. Filson (1994) 22 Cal.App.4th 1841, 1852, overruled on an unrelated point in People v. Martinez (1995) 11 Cal.4th 434, 452, reversal ordered where the length of the jury deliberations exceeded the length of the evidentiary phase of the trial.)

Another indication of a close case involving the jury's behavior is where there has previously been a hung jury. Obviously, this fact demonstrates that the government's case is less than overwhelming. (People v. Brooks (1979) 88 Cal.App.3d 180, 188.) Moreover, if a defendant is convicted on erroneously admitted evidence which was not presented to the hung jury, the inference is virtually compelled that the evidentiary error is prejudicial. (People v. Ozuna (1963) 213 Cal.App.2d 338, 342.)

Aside from hanging, a jury may show that the government's case is weak when it acquits the defendant on one or more counts. In such a circumstance, an error relating to the count of conviction should be deemed prejudicial. (People v. Epps (1981) 122 Cal.App.3d 691, 698; People v. Washington (1958) 163 Cal.App.2d 833, 846.)

Even if the jury eventually convicts the defendant, its requests for additional instructions or the readback of testimony may establish that the case was a close one. (People v. Filson, supra, 22 Cal.App.4th 1841, 1852; request for additional instructions; People v. Pearch (1991) 229 Cal.App.3d 1282, 1295; "[j]uror questions and requests to have testimony reread are indications the deliberations were close. [Citations.]"; People v. Williams (1971) 22 Cal.App.3d 34, 38-40; request for readback of critical testimony.) Moreover, if the jury hears an erroneous instruction or erroneously admitted testimony for a second time, it is manifest that the degree of prejudice to the defendant was only heightened. (People v. Williams (1976) 16 Cal.3d 663, 669; reversal ordered where the jury requested a rereading of an erroneously admitted statement and then quickly returned a guilty verdict; see also LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 876; rereading of an erroneous instruction warrants reversal; People v. Thompkins (1987) 195 Cal.App.3d 244, 249-
252; erroneous response to a deliberating jury's question requires reversal.)

Regardless of the behavior of the jury, reversible error is likely to be found when the trial court has effectively precluded the defendant from presenting his case. This is so since errors "`at a trial that deprive a litigant of the opportunity to present his version of the case . . . are . . . ordinarily reversible, since there is no way of evaluating whether or not they affected the judgment.' [Citation.]" (People v. Spearman (1979) 25 Cal.3d 107, 119.) Thus, when the trial court excludes evidence bearing on the defendant's theory of the case, reversal is appropriate. (People v. Filson, supra, 22 Cal.App.4th 1841, 1852.)

In sex cases, the erroneous exclusion of impeachment evidence should usually lead to a reversal. If the complainant is the sole government witness, reversal should be virtually automatic. (People v. Adams, supra, 198 Cal.App.3d 10, 19; "where, as here, the resolution of appellant's guilt or innocence turned on his credibility vis-a-vis that of the victim, it is reasonably probable that the verdict would have been in appellant's favor had the excluded evidence been admitted. [Citation.]"; People v. Randle, supra, 130 Cal.App.3d 286, 293; the "exclusion of the evidence bearing on the credibility of a prosecution witness where only the witness and defendant are percipient witnesses has been held to be prejudicial error. [Citations.]")

If an error impacts in a strongly negative way on the defendant's theory of the case, reversal should also be the result. For example, where the defendant presented a diminished capacity defense in a murder case, the inadmissible "statements which intimated that appellant was fabricating his defense were most prejudicial." (People v. Rucker (1980) 26 Cal.3d 368, 391; see also People v. Wagner (1975) 13 Cal.3d 612, 621; erroneous impeachment of defendant required reversal since "the resolution of defendant's guilt or innocence turned on his credibility . . ."; People v. Vargas (1973) 9 Cal.3d 470, 481; Griffin error is prejudicial if it touches a "`live nerve'" in the defense.)

In contending that an error was prejudicial, defense counsel can often find a great deal of ammunition in the prosecutor's closing argument. If the prosecutor placed a great deal of reliance on an erroneous instruction or an erroneously admitted piece of evidence, the appellate court will have a difficult time in honestly finding that the error was harmless. (People v. Cruz (1964) 61 Cal.2d 861, 868; "[t]here is no reason why we should treat this evidence as any less `crucial' than the prosecutor - and so presumably the jury - treated it;" see also People v. Woodard (1979) 23 Cal.3d 329, 341; reversal ordered where the prosecutor "exploited" erroneously admitted evidence during his closing argument; accord, People v. Robbie, supra, 92 Cal.App.4th 1075, 1088.)

As a final technique for showing prejudice, defense counsel should attempt to demonstrate in an appropriate case that a number of errors require reversal due to the cumulative prejudice which they caused. As our Supreme Court has recently said, "a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error. [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 844.) Thus, even in a case with strong government evidence, reversal may be obtained when "the sheer number of . . . legal errors raises the strong possibility the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone. [Citation.]" (Id., at p. 845; see also Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164, 1179-1180; Gerlaugh v. Stewart (9th Cir. 1997) 129 F.3d 1027, 1043; United States v. Wallace (9th Cir. 1988) 848 F.2d 1464, 1475-1476.)

After reviewing the foregoing survey of the case law, defense counsel should employ it as a starting point, not an end. Each case is somewhat unique. While counsel should be familiar with the law, it is more important to closely study the record to see exactly how a particular error affected the dynamics of a trial. By being sensitive to the effect of an error in a particular case, defense counsel can often prepare a persuasive claim of prejudicial error.

CONCLUSION

Long ago, the California Supreme Court acknowledged the truth concerning a charge of sexual assault:

"As a matter of practical observation to many judges who have presided over trials of this nature, it is plainly recognized that, notwithstanding the salutary rule that an accused is presumed to be innocent until his guilt has been established beyond a reasonable doubt, nevertheless, to the mind of the average citizen or juror, the mere fact that a person has been accused of the commission of such an offense seems to constitute sufficient evidence to warrant a verdict of 'guilty'; and that - instead of its being necessary for the prosecution to prove his guilt beyond a reasonable doubt - in order to secure an acquittal of the charge, it becomes incumbent upon the accused to completely establish his innocence, and to accomplish that result not only by a preponderance of the evidence but beyond a reasonable doubt." (People v. Adams (1939) 14 Cal.2d 154, 167, overrule don other grounds in People v. Burton, supra, 55 Cal.2d 328, 352.)

Regrettably, nothing has changed in the many decades since the quoted words were penned. Nonetheless, it is the duty of defense counsel to rigorously press for the enforcement of the rules of evidence. Without such an effort, a defendant in a sex case has no chance at all.