A Matter Of Credibility?: New Hampshire Case Involves Important Impeachment, Rape Shield Issues

July 12, 2009

An upcoming sexual assault trial provides a good illustration of the rape shield rule and a couple of rules of evidence dealing with the impeachment of witnesses.

Hai Phuoc Tran, the owner of Queen Nails, will soon stand trial, facing charges of felonious sexual assault, criminal restraint, sexual assault, simple assault and kidnapping. Those charges stem from an alleged attack Tran committed on a 22-year-old customer; according to the customer, Tran forced her into the back of his salon and sexually assaulted her.

Tran’s attorney and his defense investigator interviewed the alleged victim’s friends and acquaintances and, based upon what they said, hoped to have them testify at Tran’s trial. Those friends and acquaintances allegedly described her as “promiscuous, manipulative and abusive and said she has claimed to have been sexually assaulted before.” Tran’s attorney also sought to introduce into evidence the fact that the alleged victim had been unfaithful to a boyfriend and also had been arrested for assaulting a boyfriend. According to Tran’s attorney, such evidence had to be admitted because there are no witnesses to the alleged crime besides Tran and the alleged victim, making the issue of her credibility crucial.

Tran’s attorney was wrong. First, the trial judge found that the proposed evidence regarding the alleged victim being promiscuous, having cheated on a boyfriend, and having made similar claims before was inadmissible under New Hampshire Rule of Evidence 412, its rape shield rule, which provides in relevant part that

Except as constitutionally required, and then only in the manner provided in (b), below, evidence of prior consensual sexual activity between the victim and any person other than the defendant shall not be admitted into evidence in any prosecution or in any pretrial discovery proceeding undertaken in anticipation of a prosecution under the laws of this state.

Second, the judge found that the proposed evidence regarding the alleged victim being manipulative and abusive and having assaulted a boyfriend to be inadmissible to impeach her under New Hampshire Rule of Evidence 607–609 because none of this evidence related to her veracity as a witness.

Conversely, the judge did find that the alleged victim’s friends and acquaintances can testify that, in their opinion, they believe that she is untrustworthy because such testimony is admissible under New Hampshire Rule of Evidence 608, which provides in relevant part that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) The evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Also, the judge found that, depending on the alleged victim’s testimony at trial on certain issues, defense counsel may be able to impeach her based upon prior inconsistent statements that she made to a nurse when reporting the subject crime pursuant to New Hampshire Rule of Evidence 613.

-CM