The Prior Inconsistent Statement Project, Part 5 (Delaware)

Following up on yesterday’s post, Delaware is a second jurisdiction where a recanted prior inconsistent statement alone might be sufficient to secure a conviction. But have the Delaware courts actually gone that far?

The key case here is Acosta v. State, 417 A.2d 373 (Del. 2002). In Acosta, Frederick Acosta “was convicted on four counts of Rape Second Degree (two counts based on cunnilingus and two counts based on fellatio).” At trial, Acosta’s two daughters testified that, in July 1978, Acosta performed acts of cunnilingus upon them. Conversely,

The remaining two counts of Rape Second Degree pertain[ed] to fellatio which defendant allegedly caused the two minors to perform on him. Evidence of the act of fellatio was submitted indirectly. The State produced evidence of the act of fellatio through an officer of the New Castle County Police and the stepfather of the children. Testimony was supplied via 11 Del.C. s 3507 which permits out-of-court statements of a witness to be used as affirmative evidence at trial. The witnesses testified that in late August, 1978, the children told them that they had to perform fellatio on the defendant. While the testimony of the children was not always clear, there is testimony by the two girls at trial that they did not perform fellatio on the defendant.

After he was convicted of all four counts, Acosta appealed, claiming that his daughters’ recanted prior inconsistent statements alone were insufficient to support his convictions. In response, the Supreme Court of Delaware initially noted that “since such statements are part of the affirmative evidence and since one can understand the deep embarrassment that young girls may have by being compelled to testify publicly as to their own active participation in sexual acts, we do not find convictions on such evidence to be unreasonable and constitutionally prohibited.” As a result, the court concluded that

Without in any way being critical of the conscientious performance of the Trial Judge, we find, in hindsight, that the unusual situation required unusual precaution to assist the jury in its trial function. The fact that the defendant participated in despicable conduct does not justify his conviction of a particular offense under the criminal burden of proof unless we are satisfied the jury fairly understood the particular evidence on the particular offense. Special precautionary instructions are regularly given in the case of felon witnesses, accomplice witnesses and others. While the circumstances are obviously distinguishable, a fair trial required special advice to the jury as to the unusual care that must be taken before convicting a defendant of a particular offense solely on the out-of-court statement of the victim inconsistent with her own in-court testimony. Such an instruction was not given and in retrospect we find the failure to include such an instruction affected the substantial rights of the defendant. While the sufficiency of evidence issue was not argued before us in the context of the jury charge, and no exception was taken to the jury charge, the legal point raised by the motion for acquittal is necessarily related to the jury charge and in that sense it is included in the subject matter of the motion. We emphasize that this is a rare case, the victims denied that the crimes took place, and does not indicate any expansion of normal rules relating to instructional error.

As to the two convictions based on cunnilingus, we affirm the judgment of the Superior Court. As to the two convictions based on fellatio, we reverse and remand the case for a new trial.

Unfortunately, Acosta doesn’t leave us with a clear picture of Delaware law. One thing is clear: A jury can potentially convict a defendant based solely on partially recanted statements by multiple minor victims of sexual abuse as long as the judge gives a cautionary instruction. But what if the victims fully recanted? What if there were only one victim? And what if the person recanting was not the alleged victim, but instead an alleged accomplice or eyewitness? I don’t think that Acosta gives us a clear answer, nor does any subsequent Delaware case law.

I’m not the only one to reach this conclusion. In Vermont v. Robar, 601 A.2d 1376 (Vt. 1991), the Supreme Court of Vermont concluded that a recanted prior inconsistent statement alone was not sufficient to support a conviction. In reaching this conclusion, the court cited a string of cases using United States v. Orrico, 599 F.2d 113 (6th Cir.1979) to reach a similar conclusion and then noted that

The only case that could be said to be inconsistent with Orrico is Acosta v. State, 417 A.2d 373 (Del.1980). However, Acosta has only a brief discussion of the constitutional question, and the court was so concerned about the possible prejudice to defendant that it reversed the conviction sua sponte because the trial court failed to instruct the jury “as to the unusual care that must be taken before convicting a defendant of a particular offense solely on the out-of-court statement of the victim inconsistent with her own in-court testimony.”

-CM