Ninth Circuit Finds Broad Right to Cross-Examine Complainant

Fowler v. Sacramento County Sheriff’s Department (2005)

A man convicted of molesting a 14-year-old girl will get a new trial because the judge precluded cross-examination about abuse accusations she had made against other men. The case is Fowler v. Sacramento County Sheriff’s Department, 421 F.3d 1027 (9th Cir. 2005).

Charla Lara was the daughter of a woman with whom Jeff Fowler had been romantically involved. On one occasion, Lara testified, Fowler told her that she needed some lotion and then applied it to her body, putting his hand inside her underpants, then under her bra and on her nipples. A short while later he advised her, if she “got horny,” to masturbate rather than to have sex but, if she had sex, to use a condom.

Fowler denied touching Lara inappropriately. He testified he had applied lotion only at her request and not to any intimate areas. He admitted the conversation she described and explained that he had been told she was “messing around.”

The trial judge granted a prosecution motion to preclude cross-examination of Lara about two other abuse allegations she had made. Neither had resulted in a conviction. Concerning the second of them, Lara had said in retrospect that maybe she “was just like a little cautious about things,” and that it had not been “that big of a deal -” even though at the time she had told police that her mother’s then-boyfriend had squeezed her genitals about four times.

Fowler’s lawyer wanted to elicit these earlier allegations while cross-examining Lara. They would show, counsel argued, that she was “supersensitive” to physical contact by adult men and therefore could overreact to it. The defense also argued one of the allegations showed Lara was untruthful.

The Ninth Circuit agreed that the jury might have drawn those inferences. It held that the trial court had abridged Fowler’s Sixth Amendment right to confront witnesses against him when it forbid the proposed cross-examination.

The court emphasized that “the right to cross-examine includes the opportunity to show [not only] that a witness is biased, [but also] that the testimony is exaggerated or [otherwise] unbelievable.” Cross-examination “may implicate the Sixth Amendment without implying conscious or malicious fabrication” and even when “it is not certain to affect the jury’s assessment of the witness’ reliability or credibility.” Rather, it is enough that the jury “might reasonably” question the witness’ reliability or credibility due to the cross-examination.

The court’s opinion contains a detailed review of case law on the breadth of the Sixth Amendment right to cross-examine. Any defense lawyer briefing the subject would get a good start here. The opinion also contains a thorough discussion rejecting the trial court’s reasons for forbidding the cross-examination: waste of time, confusion of the jury, and prejudice to the witness.

The reversal is especially remarkable because it comes in a federal collateral attack on a state court conviction. The threshold for reversible error is extraordinarily high in such a case.