Jessie L. Redmond v. Phil Kingston, Warden

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2333
Jessie L. Redmond,
Petitioner-Appellant,
v.
Phil Kingston, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 98-C-106--Rudolph T. Randa, Judge.
Argued October 26, 2000--Decided February 14, 2001
Before Bauer, Posner, and Ripple, Circuit Judges.
Posner, Circuit Judge. Under the current regime
governing federal habeas corpus for state prison
inmates, the inmate must show, so far as bears on
this case, that the state court which convicted
him unreasonably applied a federal doctrine
declared by the United States Supreme Court, 28
U.S.C. sec. 2254(d)(1); Williams v. Taylor, 529
U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562
(7th Cir. 2000), in this case the doctrine that
unreasonably limiting the cross-examination of a
prosecution witness infringes the constitutional
right of confrontation. E.g., Delaware v. Van
Arsdall, 475 U.S. 673, 679-80 (1986); Davis v.
Alaska, 415 U.S. 308 (1974). The petitioner,
Redmond, a counselor at an institution for drug-
and alcohol-abusing minors, was convicted of
statutory rape of Heather, a 15-year-old resident
of the institution. The specific charge was that
he had traded cocaine to her for sex. The state
acknowledged at argument that the principal
evidence of the offense was Heather’s testimony
and that of another resident, Michelle, who,
however, merely repeated what Heather had told
her had happened. There was also evidence that
Heather had tested positive for cocaine after the
alleged offense but that she had a long history
of using cocaine and might have gotten it from
someone other than Redmond or for something other
than sex.
Eleven months before the alleged offense,
Heather had told her mother that she had been

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forcibly raped, and she had offered her torn
clothes as evidence. She had repeated the story
of the rape, with many circumstantial details, to
a hospital nurse and to a police officer
investigating the incident, but later had
admitted making up the story (and ripping her
clothes herself) in order to get her mother’s
attention. Her new story was that she had had sex
with the man she had accused of forcible rape,
but that it had been with her consent. Since she
was underage, the police continued to investigate
the incident as a crime. The man was never found,
and there is no evidence other than Heather’s
say-so that the incident actually occurred. There
is no serious doubt that her recantation of the
forcible-rape story was truthful. Redmond offered
more than thirty police reports of the
investigation of Heather’s claim that she had
been forcibly raped, convincingly demonstrating
its falsity, and in addition the district
attorney had instituted contempt charges against
Heather. Compare Hughes v. Raines, 641 F.2d 790,
792 (9th Cir. 1981).
Redmond wanted to bring out her lie on cross-
examination in order to show that Heather would
lie about a sexual assault in order to get
attention, and thus had a motive to accuse him
falsely. The trial judge, seconded by the
Wisconsin court of appeals, refused to permit
this cross-examination. The court of appeals held
that although the state’s rape-shield law makes
an exception for a prior false charge of a sexual
assault, Wis. Stat. sec. 972.11(2)(b)3, Heather’s
false charge did not have "sufficient probative
value to outweigh its inflammatory and
prejudicial nature," and therefore, under another
section of the statute, sec. 971.31(11), it was
inadmissible. The court thought the false charge
merely "cumulative of other evidence which went
to Heather’s credibility," namely that she had
begun using drugs at the age of 12, had stolen
and occasionally danced (!) to obtain money for
cocaine, had run away from the institution, had
skipped school, and had told lies in the past.
Furthermore, the court thought the evidence of
the false charge might have "confused the issue"
since "the initial recantation involved consent
which was not an element of the current charges,"
and also that it might have misled the jury "into
focusing on Heather’s willingness to have sexual
intercourse with a complete stranger, instead of
on the charges against Redmond." State v.
Redmond, 1996 WL 485095, at *10 (Wis. App. Aug.
28, 1996).
With all due respect, we believe that the court
of appeals’ analysis and conclusion cannot be
considered a reasonable application of the
Supreme Court’s confrontation doctrine. Compare

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State v. DeSantis, 456 N.W.2d 600, 608-09 (Wis.
1990). The evidence of the false charge of
forcible rape was not cumulative of other
evidence bearing on Heather’s credibility,
because none of the other evidence either
involved a false charge of being sexually
assaulted or furnished a motive for such a
charge. The fact that a teenage girl has a
disordered past and lies a lot (who doesn’t?)
does not predict that she will make up stories
about having sex. To indulge such an assumption
would be to place such persons largely beyond the
protection of the law. But the fact that the girl
had led her mother, a nurse, and the police on a
wild goose chase for a rapist merely to get her
mother’s attention supplied a powerful reason for
disbelieving her testimony eleven months later
about having sex with another man, by showing
that she had a motive for what would otherwise be
an unusual fabrication. Delaware v. Van Arsdall,
supra, 475 U.S. at 679-80; Wealot v. Armontrout,
948 F.2d 497 (8th Cir. 1991); United States v.
Stamper, 766 F. Supp. 1396 (W.D.N.C. 1991), aff’d
without opinion under the name In re One Female
Juvenile Victim, 959 F.2d 231 (4th Cir. 1992).
The evidence thus was not cumulative, or
otherwise peripheral, considering that testimony
by Heather was virtually the only evidence of
Redmond’s guilt that the prosecution had. Nor was
the evidence of her previous false charge of rape
prejudicial to the state, except insofar as its
prejudicial effect was a function of its
probative weight, which of course is not the
relevant meaning of prejudice. United States v.
Jackson, 886 F.2d 838, 847 (7th Cir. 1989). The
prejudice that offsets probative weight has to
inhere in some extraneous fact, such as
embarrassing but irrelevant details or, as the
court believed, in the potential of the evidence
to confuse the trier of fact. But in concluding
that there was a danger of confusion the court
committed a fatal analytical mistake. It assumed
that Heather would be required or permitted to
testify that she had had consensual sex with the
alleged rapist, evidence barred by the rape-
shield law. The only evidence that was relevant
to her credibility in Redmond’s case, however,
the only evidence she would or should have been
permitted to give on that subject, was that
within the preceding year she had made up a story
about being forcibly raped. Whether or not she
had had sex with the alleged rapist was
irrelevant, since Redmond was not prepared to try
to prove that she had not. For unexplained
reasons the Wisconsin court of appeals thought
that if Redmond’s lawyer had been permitted to
ask Heather whether she had ever made a false
charge of forcible sexual assault, the door would
have been opened to an inquiry into whether she

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had had sex on that occasion at all. We cannot
think of any reason why. The state could not have
used the "fact" that Heather had had sex with the
alleged forcible rapist to show that she
fabricates only tales of being forcibly raped,
because, all objections based on the rape-shield
statute to one side, the state can no more show
that Heather had sex with the alleged rapist than
Redmond can show the contrary.
And thus the court’s ruling, though ostensibly
based on the rape-shield statute, derives no
support from that statute. The statute protects
complaining witnesses in rape cases (including
statutory-rape cases) from being questioned about
their sexual conduct, but a false charge of rape
is not sexual conduct. See Wis. Stat. sec.
972.11(2)(a) (defining such conduct); cf. United
States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.
1988); United States v. Stamper, supra, 766 F.
Supp. at 1399 and n. 2. The false-charge
"exception" to the rape-shield statute is not
really an exception, but rather a reminder of the
limited meaning of "sexual conduct" as defined in
the statute. The only basis for the court’s
ruling was the general principle of the law of
evidence, which is codified for federal trials in
Fed. R. Evid. 403 but is equally a principle of
Wisconsin’s law of evidence, see Wis. Stat. sec.
904.03, that relevant evidence may be excluded if
its probative value is substantially outweighed
by its prejudicial (confusing, or cumulative)
effect. When that unexceptionable rule is applied
as it was here to exclude highly probative,
noncumulative, nonconfusing, nonprejudicial
evidence tendered by a criminal defendant that is
vital to the central issue in the case (Heather’s
credibility), the defendant’s constitutional
right of confrontation has been infringed. Olden
v. Kentucky, 488 U.S. 227, 232 (1988) (per
curiam); Delaware v. Van Arsdall, supra, 475 U.S.
at 679-80; Davis v. Alaska, supra, 415 U.S. at
316-17; United States v. Sasson, 62 F.3d 874,
882-83 (7th Cir. 1995).
Olden is factually very similar to the present
case, which eliminates any question about the
scope of the applicable federal doctrine declared
by the Supreme Court, while cases such as Hogan
v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996), and
United States v. Bartlett, 856 F.2d 1071, 1087-89
(8th Cir. 1988), which upheld the exclusion from
evidence of false rape charges, are readily
distinguishable. They are cases in which the
defendant wanted to use the falsity of the
charges to demonstrate that the complaining
witness was a liar, rather than to demonstrate
that she had a motive to lodge a false accusation
against the defendant. The use of evidence that a
person has lied in the past to show that she is

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lying now is questionable, quite apart from rape-
shield laws, since very few people, other than
the occasional saint, go through life without
ever lying, unless they are under oath. Cf. Fed.
R. Evid. 404(b), 608(b); Hogan v. Hanks, supra,
97 F.3d at 191; Hughes v. Raines, supra, 641 F.2d
at 793. The probative value of such evidence when
used for such a purpose is small and may be
outweighed by the prejudicial effect of revealing
that the witness had made such a serious charge
falsely. United States v. Bartlett, supra, 856
F.2d at 1088-89. But while "generally applicable
evidentiary rules limit inquiry into specific
instances of conduct through the use of extrinsic
evidence and through cross-examination with
respect to general credibility attacks, . . . no
such limit applies to credibility attacks based
upon motive or bias," Quinn v. Haynes, 2000 WL
1784161, at *5 (4th Cir. Dec. 6, 2000)--as in
this case.
The judgment is reversed with directions to
order the petitioner released unless the state
retries him within 120 days of the date of this
decision.
Reversed.

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