Roland Chretien v. New Hampshire State Prison, Warden

Petitioner Roland Chretien, a New Hampshire State Prison

inmate, seeks federal habeas relief from his state court

conviction, alleging violations of his constitutional rights

based on evidentiary rulings at his trial. This court has

jurisdiction under 28 U.S.C. § 1331 (federal question) and the

Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA”).

See 28 U.S.C. § 2254(a) (2006) (habeas relief for state

prisoners).



The respondent, the Warden of the New Hampshire State

Prison, has moved for summary judgment. After a hearing, and for

the following reasons, the Warden's motion for summary judgment

is granted in part and denied in part, and an evidentiary hearing

will be scheduled to address Chretien's remaining claim.



APPLICABLE LEGAL STANDARD



A party is entitled to summary judgment where "the

pleadings, the discovery and disclosure materials on file, and

any affidavits, show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The moving party bears

the initial burden of showing the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).



Not every factual dispute is sufficient to

thwart summary judgment; the contested fact

must be "material” and the dispute over it

must be "genuine.” In this regard,

"material” means that a contested fact has

the potential to change the outcome of the

suit under the governing law if the dispute

over it is resolved favorably to the

nonmovant. By like token, "genuine” means

that the evidence about the fact is such that

a reasonable jury could resolve the point in

favor of the nonmoving party.



Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001).

Once that burden is met, the burden shifts to the nonmoving party

to produce specific facts of record indicating a genuine issue

for trial. See Geffon v. Micrion Corp., 249 F.3d 29, 34 (1st

Cir. 2001); see also Celotex, 477 U.S. at 323. In deciding

whether summary judgment is proper, the court must view the

entire record in the light most favorable to the nonmoving party

and draw all reasonable inferences in that party's favor. See

Zyla v. Wadsworth, 360 F.3d 243, 246 (1st Cir. 2004).



BACKGROUND1



I. Facts



Petitioner Ronald Chretien was convicted of two counts of

sexual assault in violation of N.H. Rev. Stat. Ann. § 632-A:4,

and three counts of aggravated felonious sexual assault in

violation of § 632-A:2, occurring at the Blazing Saddles

Motorcycle Shop in Plaistow, New Hampshire on June 26, 2003.

Around noon on that day, the complainant entered the store to

purchase a belt. Chretien, a co-owner of the store whom the

complainant had met on prior occasions, approached her and they

had a brief conversation. The complainant then went upstairs to

the second floor of the store to find a belt. Chretien followed

her to the top of the stairs and continued the conversation.



They discussed the possibility of the complainant working at the

store on a part-time basis. Chretien then spun her around, told

her she looked pretty good, pulled her toward him, and kissed

her. The complainant told him to stop and pulled away before

walking to the back of the store. Chretien then grabbed the

complainant by her wrist, hurting her, and kissed her again. She

pulled away from him and tried walking toward the front of the

store.



As she walked away from him, Chretien pulled the complainant

behind the cash register and told her she could not leave him

with an erection. He then put her hand onto his pants and told

her that his erection was her fault. Chretien pulled her into a

nearby stock room, shut the door, grabbed her around the throat,

and tried to lift up her shirt and touch her breasts. Angered by

the complainant's refusals to cooperate, Chretien pushed her to

the floor and forced her to perform fellatio, eventually

ejaculating. Once the act was completed, Chretien pushed her out

of the stock room and went back to work. Before she left the

store, she cleaned off her face and mouth with tissue paper that

she then placed in her purse.



After leaving, the complainant went to Anzalone's Market in

Exeter, New Hampshire, where she washed her mouth out with a

carbonated beverage. After telling a clerk at the deli counter

about what had just happened, she discarded the tissues in a

garbage can outside the market. Police later retrieved these

tissues from the garbage. DNA testing of the semen on these

tissues was consistent with Chretien's DNA. Chretien was

eventually indicted on the above-referenced sexual assault

charges.



II. Procedural history



Prior to his bench trial in Rockingham County Superior

Court, Chretien filed a motion in limine, as required by New

Hampshire Superior Court Rule 100-A, seeking permission to: (1)

call Peter Hallinan2 as a witness to testify to a subsequent

sexual encounter with the complainant, including an implied

accusation of sexual assault after the fact and (2) depose and

cross-examine the complainant about that series of events. In

support of this motion, Chretien submitted Hallinan's affidavit

detailing a consensual sexual encounter with the complainant in a

restaurant parking lot in the summer of 2003, after the assault

by Chretien. According to the affidavit, early the next morning,

Hallinan received a telephone call from the complainant's phone

number. An unknown male asked about the incident. Soon

thereafter, Hallinan called the unknown male at the same number

and was told not to worry because the complainant had "changed

her story” and was not going to press charges. While reserving

ruling to the time of trial, the superior court eventually

informed trial counsel for Chretien that his motion had been

denied.



During the course of the trial itself, Chretien asked the

court for permission to call Hallinan as a witness. The court

refused, citing the New Hampshire rape shield law, N.H. Rev.

Stat. Ann. § 632-A:6, and ruling, inter alia, that such testimony

was not relevant and its prejudicial effect to the complainant

far outweighed any probative value. At the conclusion of the

bench trial, Chretien was convicted on all counts.



Chretien moved in the superior court for a new trial,

arguing that the court erred by excluding Hallinan's testimony,

and that his counsel was ineffective in advising Chretien to

waive his right to a trial by jury. The motion was denied.

Chretien then appealed his convictions to the New Hampshire

Supreme Court, which affirmed in an unpublished opinion. New

Hampshire v. Chretien, No. 05-0228, slip op. at 1-2 (N.H. Aug.

1 1, 2006) ("Direct Appeal Opinion”).



On appeal, Chretien argued that the trial court erred in

denying his motions: (1) to depose the victim before trial, (2)

to admit extrinsic evidence that the victim later made an

allegedly false accusation of sexual assault against another man,

and (3) for a new trial. The supreme court rejected Chretien's

first and third claims, ruling that he had failed to preserve

them in the superior court. The supreme court further ruled that

Chretien also had not preserved any claim that he was wrongfully

prevented from "cross-examin[ing] the victim about the alleged

subsequent assault.” Direct Appeal Opinion, slip op. at 2.



Limiting its review to whether the superior court correctly

excluded extrinsic evidence of the allegedly false accusation,

the supreme court ruled that the trial court's ruling had

violated neither the New Hampshire nor the United States

Constitution. First, the supreme court upheld the evidentiary

ruling as a "sustainable exercise of discretion” under New

Hampshire law, ruling that "[e]xtrinsic evidence of a prior (or

in this case, a subsequent) false allegation of sexual assault by

a victim in a sexual assault case may be admitted only where the

allegations are similar, and the proffered evidence is highly

probative of the material issue of the complainant's motives.”

Id. (internal quotations omitted). Second, the supreme court

ruled that excluding the extrinsic evidence did not violate

Chretien's right to due process under the federal constitution.

Distinguishing the decision of the First Circuit in White v.

Coplan, 399 F.3d 18 (1st Cir. 2005), the supreme court reasoned

that "White concerned cross-examination, while this case concerns

extrinsic proof,” which "requires more witnesses and documents,

and so greater risks of confusion and delay.” Direct Appeal

Opinion, slip op. at 2 (quoting White, 399 F.3d at 25-26). The

court further reasoned that "in White, the evidence of the

falsity of the victims' earlier accusations was much more

compelling than the evidence here,” which consisted only of

"testimony that an unknown man accused [Hallinan] of assaulting

the victim,” coupled with testimony that the same unknown man

later told Hallinan that the victim had recanted. Id. at 3; but

see infra notes 5 and 11.



Following the denial of his appeal, Chretien filed a second

motion for a new trial in the superior court, this time claiming

that counsel was ineffective for failing to cross-examine the

victim about her allegedly false charge that Hallinan had

sexually assaulted her. In a written order denying the motion,

the superior court explained that it had "advised the defendant's

trial counsel that such evidence would not be permitted because

it was not relevant,” and that counsel had not simply

"forgot[ten] to ask the victim about the subsequent incident.”3

New Hampshire v. Chretien, Rockingham County, No. 04-S-774, slip

op. at 2 (Oct. 23, 2006). The superior court focused its

analysis not on the complainant's allegedly false accusation (as

cited in the motion), but on alleged sexual conduct, explaining

its view that "a subsequent sexual encounter with a different

individual had absolutely no relevance to any issue in this

case.” Id. Chretien appealed this decision to the New Hampshire

Supreme Court, which declined to accept the discretionary appeal.

New Hampshire v. Chretien, No. 2006-864, slip op. (Jan. 17,

2007); see N.H. SUP. CT. R. 7(1)(B).



III. Petition for writ of habeas corpus



Chretien then filed a petition for a writ of habeas corpus

in this court under 28 U.S.C. § 2254. He challenges his

conviction on the grounds that the superior court improperly

denied him the opportunity to: (1) cross-examine the victim

about the allegedly false accusation of sexual assault she made

against Hallinan, (2) cross-examine the victim about the alleged

incident of consensual sex between her and Hallinan, and (3)

introduce extrinsic evidence on both of these points.



ANALYSIS



I. Applicable Law



A federal court may not disturb a state court adjudication

of a federal claim on the merits unless the state court decision

"was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1); see also

Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court

decision is "contrary to” federal law if it contradicts the

Supreme Court on a question of law or "decides a case differently

. . . on a set of materially indistinguishable facts.” Id. at

412-13. A decision is an "unreasonable application” of Supreme

Court precedent if it "identifies the correct governing legal

principle from [the Supreme] Court's decisions, but unreasonably

applies that principle to the facts of the prisoner's case.” Id.

at 413. An unreasonable application of federal law must be

objectively unreasonable, not merely incorrect or erroneous, to

warrant habeas relief. Id. at 411; accord Phoenix v. Matesanz,

233 F.3d 77, 80-81 (1st Cir. 2000). If "the petition presents a

federal claim that was raised before the state court but was left

unresolved, the AEDPA's strict standards do not apply” and the

court will review the claim de novo. Horton v. Allen, 370 F.3d

7 5, 80 (1st Cir. 2004).



While a criminal defendant has constitutional rights to (1)

cross-examine the witnesses who testify against him, and (2) to

present evidence in his own defense, see United States v.

Scheffer, 523 U.S. 303, 308 (1998); Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986), neither right is absolute and "may, in

appropriate cases, bow to accommodate other legitimate interests

in the criminal trial process.” Chambers v. Mississippi, 410

U.S. 284, 295 (1973). Thus, these rights may be subject to

reasonable restrictions reflecting concerns of harassment,

prejudice, witness safety, confusion, relevance, or delay. Olden

v. Kentucky, 488 U.S. 227, 232 (1988); see also Scheffer, 523

U.S. at 308 (unreasonable restrictions are those that are

arbitrary or disproportionate to the purposes they are designed

to serve).



Under Scheffer, states have "broad latitude under the

Constitution to establish rules excluding evidence” where those

restrictions serve a legitimate government purpose. 523 U.S. at

308; see also Michigan v. Lucas, 500 U.S. 145, 149 (1991); Rock

v. Arkansas, 483 U.S. 44, 55 (1987); Dolinger v. Hall, 302 F.3d

5, 14-15 (1st Cir. 2002). Rape shield laws,4 which provide for

the exclusion of certain types of otherwise admissible evidence

in sexual assault cases, generally have been upheld as

permissibly protecting victims of sexual assault "against

surprise, harassment, and unnecessary invasions of privacy.”

See, e.g., Lucas, 500 U.S. at 150 (upholding a Michigan rape

shield statute as a "valid legislative determination that rape

victims deserve heightened protection against surprise,

harassment, and unnecessary invasions of privacy”). As explained

infra, however, to withstand constitutional scrutiny, rape shield

laws may not, in every case and under all circumstances, be

strictly construed and rigidly enforced, or broadly applied.



A. Extrinsic evidence



Chretien asserts that his conviction was obtained in

violation of his Fourteenth Amendment due process right to a fair

opportunity to present a defense. See U.S. CONST. amend. XIV.

Specifically, he argues that the superior court deprived him of

this right when it excluded extrinsic evidence--in the form of

Hallinan's testimony--of the complainant's alleged sexual liaison

with him, and her allegedly false accusation of sexual assault

against him.



The Supreme Court has recognized that while "[f]ew rights

are more fundamental than that of an accused to present witnesses

in his own defense,” Chambers, 410 U.S. at 302, that right is not

absolute. Scheffer, 523 U.S. at 308. As discussed supra, the

right to present witnesses is subject to "reasonable

restrictions” and may, in appropriate circumstances, be

restricted in favor of legitimate state interests. Id.

In rejecting Chretien's claim that the superior court had

violated his federal due process and confrontation rights by

excluding extrinsic evidence of the complainant's allegedly false

accusation against Hallinan, the supreme court's application of

this principle cannot be characterized as objectively

unreasonable. See Williams, 529 U.S. at 412. Noting the "risks

of confusion and delay” attendant to extrinsic evidence of a

victim's credibility in general, the court reasoned that these

risks were heightened in the case of Hallinan's proffered

testimony as to the allegedly false accusation, which depended

entirely on what an "unknown man” alleged the complainant had

said. There is arguably room for disagreement over the trial

court's decision to exclude the evidence from a bench trial,5

because the risk of prejudice to the complainant was likely less

than that involved in a jury trial. United States v. Shukri, 207

F.3d 412, 419 (7th Cir. 2000). Still, the supreme court's

balancing of Chretien's right to present evidence in his own

defense against the interest in excluding that kind of evidence

was not an unreasonable application of Olden. 488 U.S. at 232

(constitutional trial rights of the accused may be subject to

reasonable restrictions reflecting concerns of harassment,

prejudice, witness safety, confusion, relevance, or delay).

Therefore, as a matter of habeas review under the AEDPA standard,

the Warden is entitled to summary judgment as to Chretien's claim

arising out of the exclusion of extrinsic evidence of the

complainant's allegedly false accusation.

number. This further indicated that the complainant had

disclosed the alleged encounter with someone likely in her

household, followed by contact between a man using the

complainant's phone and the alleged assailant, thereby creating

another (although inferential) similarity between the two

incidents. In a subsequent phone call from the same phone, the

caller said the complainant had "changed her story.” Further,

the probative value of this evidence may have increased depending

on the cross-examination denied by the trial court. See White,

399 F.3d at 22; State v. Miller, 155 N.H. 246, 250, 921 A.2d 942,

947 (2007). As explained infra, a pre-trial evidentiary hearing

might have brought these issues into sharper focus.





B. Cross-examination



Chretien also asserts that his conviction was obtained in

violation of his Sixth Amendment right to confront adverse

witnesses because the superior court prevented him from crossexamining the complainant about her conduct during and after the alleged Hallinan encounter. Because neither the trial court nor

the supreme court6 addressed the merits of Chretien's federal

constitutional claim based on his restricted right to crossexamination, this court reviews the claim de novo. Norton v.

Spencer, 351 F.3d 1, 5 (1st Cir. 2003); Fryar v. Bissonnette, 318

F.3d 339 (1st Cir. 2003).7





The Sixth Amendment provides that "[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . .” U.S. CONST.

amend. VI. A primary interest secured by the Confrontation

Clause is the right of the accused to cross-examine adverse

witnesses. Douglas v. Alabama, 380 U.S. 415, 418 (1965). The

right of cross-examination is a "functional” right designed to

promote reliability in the truth-finding functions of a criminal

trial. Kentucky v. Stincer, 482 U.S. 730, 736 (1987); see also

Pointer v. Texas, 380 U.S. 400, 404 (1965) ("certainly no one

experienced in the trial of lawsuits, would deny the value of

cross-examination in exposing falsehood and bringing out the

truth in the trial of a criminal case”).



Nevertheless, "trial judges retain wide latitude insofar as

the Confrontation Clause is concerned to impose reasonable limits

on [the cross-examination of an adverse witness] based on

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation

that is repetitive or only marginally relevant.” Van Arsdall,

475 U.S. at 679. The Confrontation Clause "guarantees an

opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever

extent, the defense might wish.” Delaware v. Fensterer. 474 U.S.

1 5, 20 (1985). Accordingly, a Confrontation Clause violation

occurs only when restrictions on cross-examination work

"effectively to emasculate the right of cross-examination

itself.” Smith v. Illinois, 390 U.S. 129, 131 (1968); see also

Stincer, 482 U.S. at 737; Fensterer, 474 U.S. at 18.

Chretien claims that the trial court erred in denying him

the opportunity to cross-examine the complainant about: (1) her

alleged sexual liaison with Hallinan subsequent to the charged

sexual assault, and (2) the allegedly false accusation against

Hallinan based on inferences drawn from Hallinan's nearly

contemporaneous phone conversation with a man possessing both the

complainant's phone and knowledge of the accusation. The New

Hampshire rape shield law generally excludes all evidence of

prior consensual activity on the part of the complainant. N.H.

Rev. Stat. Ann. § 632-A:6; N.H. R. Evid. 412. But in the seminal

New Hampshire case on point, State v. Howard, the New Hampshire

Supreme Court held that the victim's privilege created by the law

must, like all statutory or common law privileges, yield to a

competing public interest when the Constitution demands it. 121

N.H. 53, 427 A.2d 457 (1981); see also State v. Goulet, 129 N.H.

348, 351, 529 A.2d 879 (1987) ("the right of confrontation

limit[s] the application of the rape shield law when evidence of

the victim's prior sexual activity with people other than the

defendant has a probative value in the context of a particular

case that outweighs its prejudicial effect on the victim”); State

v. Spaulding, 147 N.H. 583, 589, 794 A.2d 800 (2002). It is

recognized that:



Because strictly construed, the shield law

would bar evidence of prior sexual activity

in all cases, and such a construction would

render the law unconstitutional, the [New

Hampshire Supreme] Court has held that a

defendant in a [sexual assault] prosecution

must be given an opportunity to demonstrate

that due process requires the admission of

such evidence because the probative value in

the context of the particular case outweighs

its prejudicial effect on the prosecutrix.



2 R. McNamara, New Hampshire Practice, Criminal Practice and

Procedure § 28.27 (3d ed. 1997) (citing several supporting N.H.

Supreme Court decisions). Thus, disallowing cross-examination of

the victim of a sexual assault about other sexual conduct does

not offend the confrontation clause, so long as the ruling is

based on a proper weighing of the competing interests identified

by Olden. See Lucas, 500 U.S. at 149; Dolinger v. Hall, 302 F.3d

5, 11 (1st Cir. 2002) (affirming trial court's limitation on

scope of cross-examination where questioning posed risk of

prejudice and harassment to victim).



While the federal evidentiary rules broadly prohibit

evidence of "all sexual conduct other than the rape or assault at

issue,” see Fed. R. Evid. 412; United States v. Yazzie, 59 F.3d

807, 814 (9th Cir. 1995), the New Hampshire rape shield statute

appears by its terms to be limited to evidence of "prior” sexual

conduct. See N.H. Rev. Stat. Ann. § 632-A:6; N.H. R. Evid. 412.

Chretien has never disputed that New Hampshire's statute and rule

properly may be applied to evidence of subsequent sexual conduct,

and this court will assume, as did the New Hampshire Supreme

Court, that the law applies to evidence of subsequent, as well as

prior, conduct. As just discussed, however, the simple fact that

evidence falls within the scope of a state rape shield law does

not mean that its exclusion in a particular case does not violate

the defendant's confrontation clause rights. See Lucas, 500 U.S.

at 149.8



New Hampshire Rule of Evidence 608(b), the counterpart to

Federal Rule 608(b), "permits an attack on a witness' credibility

. . . with restrictions and in the discretion of the court, by

cross-examination of the witness directed to specific instances

of conduct bearing on truthfulness--including instances of prior

untruths.” White, 399 F.3d at 22 (internal quotations omitted).



Such evidence, although relevant, may be excluded if its

"probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” N.H. R. Evid.

403.



In this case, although cross-examination regarding the

alleged Hallinan encounter itself was neither clearly admissible

(under state law) nor constitutionally required (under federal

law), some probing of the purported false accusation would have

been highly probative while violating no law or rule of evidence.

Generally, if this line of questioning is allowed by the court,

the cross-examiner must accept the answer as the witness gives it

and is prohibited from introducing extrinsic evidence, or

"evidence other than the witness's own answers on crossexamination.” Miller, 155 N.H. at 250. If, however, a defendant

in a sexual assault case is able to show by clear and convincing

evidence that the putative complainant has previously made

"demonstrably false” allegations, the evidentiary rules shift in

favor of admissibility. White, 399 F.3d at 26. Upon a clear

demonstration of falsity, the trial court is not only permitted,

but is "constitutionally required to permit this crossexamination.” Miller, 155 N.H. at 250 (emphasis in original).

The court may, in its discretion, permit the introduction of

extrinsic evidence, White, 399 F.3d at 26, albeit subject to the

overriding protection of Rule 403, discussed supra.



Here, the trial court was proffered highly detailed and

credible (albeit inferential)9 evidence of an allegedly false

accusation of sexual assault following an alleged non-forcible,

semi-public sexual encounter. The record contains no suggestion

that the source of this evidence, Hallinan, was biased in favor

of Chretien or prejudiced against the complainant. Since the

prosecution of the case involved somewhat similar circumstances,

and a consent defense had been asserted, the trial court should

have taken steps to determine the nature and extent of the

evidence's probative value.



One such step would have been a pretrial evidentiary

hearing, commonly referred to in New Hampshire state courts as a

"Howard hearing,” limited to questioning the complainant about

whether the Hallinan accusation (as opposed to the sexual

encounter) occurred, and if so, whether it was false.10 At that

point, by balancing the various rules, requirements, and purposes

of New Hampshire Rules of Evidence 402, 403, 412, and 608(b), as

well as the Sixth Amendment, the trial court would have been in a

better position to determine the trial admissibility of the

cross-examination, and what effect the complainant's answers may

have had, if any, on the admissibility of other evidence

proffered by Chretien. "Evidence suggesting a motive to lie,”

such as explaining a regretted extramarital sexual encounter to a

spouse, "has long been regarded as powerful evidence undermining

credibility, and its importance has been stressed in Supreme

Court confrontation cases.” White, 399 F.3d at 26; see, e.g.,

Olden, 488 U.S. at 231; Van Arsdall, 475 U.S. at 680; Davis v.

Alaska, 415 U.S. 308, 319 (1974). As the First Circuit stated in

White:



If the witness were prepared to admit on the

stand that a prior accusation of similar

nature was false, it is hard to imagine good

reason for excluding the evidence. Prior

admitted lies of the same kind in similar

circumstances could powerfully discredit the

witness. No time-consuming excursion beyond

the witness would be required. Further, the

accusation being conceded to be untrue,

inquiry would not require the witness to

admit to prior sexual activity or assault.

The difficulties arise when it is

assumed that the witness will make no such

admission of past lies.

399 F.3d at 25.11



Due to the sexual nature of the allegedly false accusation,

and therefore the danger of unfair prejudice to the complainant

in a sexual assault case, (see N.H. R. Evid. 403, 412) the scope

of the cross-examination that should have been permitted, if any,

is not clear based on the superior court record. See United

States v. Crowley, 318 F.3d 401, 416-17 (2d Cir. 2003) (court

authorized to limit cross-exam of sexual assault victim

concerning false accusations where risk of unfair prejudice and

confusion outweighed its probative value); see also Redmond v.

Kingston, 240 F.3d 590, 591-92 (7th Cir. 2001) (prior false

accusation provided powerful reason to disbelieve alleged

victim's testimony); Depetris v. Kuykendall, 239 F.3d 1057, 1062

(9th Cir. 2001) (where defendant's guilt hinged largely on

testimony of prosecution witness, exclusion of impeachment

evidence critical to assessing witness's credibility violated

confrontation clause); United States v. Stamper, 766 F. Supp.

1396, 1405 (W.D.N.C. 1991) ("Evidence of prior false allegations

is so probative of the central issue in a rape case that to

exclude it might deny evidence critical to the defense”). But a

indication, however, of how the court came by that information

(i.e. a prosecutor's proffer, police report, in-chambers comment,

etc.). It does not appear that it came from deposition,

courtroom testimony during a "Howard hearing” or other

proceeding, affidavit, or any other recorded presentation to the

court.



pretrial evidentiary hearing or deposition would have aided the

trial court in making that determination, as well as the New

Hampshire Supreme Court in reviewing it.12 Also, as alluded to

supra, the question of the admissibility of extrinsic evidence

relating to the accusation, while excluded under a strict Rule

608(b) analysis, could be reopened if the accusation was shown to

be demonstrably false. White, 399 F.3d at 26.



Ultimately, the record before the court is insufficient for

the court to render a decision on the Warden's motion for summary

judgement with respect to the cross-examination claim. The

ruling here, however, is not that the complainant in this case

12 Such a pretrial hearing might have seemed futile or

unnecessary to the trial court given its observation that:



[T]his Court was the finder of fact in this case, not a

jury. Thus this Court was aware of the allegation of

subsequent sexual activity by the alleged victim and

another adult male and determined it not to be relevant

to any issue in the case. This is not a situation

where if a jury knew about the subsequent act, the jury

might have looked upon the alleged victim's credibility

with a jaundiced eye.



New Hampshire v. Chretien, Rockingham County, No. 04-S-774, slip

op. at 2 (Oct. 23, 2006). This observation, however--that the

trial court itself, and not the jury, was the trier of fact--cuts

both ways. Even if minimally relevant and highly prejudicial

information had been elicited from the complainant, the trial

court, experienced in matters of preliminary admissibility

determination and admissibility for limited purposes, see N.H. R.

Evid. 104, 105, would not have been influenced by it to

Chretien's detriment.





should have been required to undergo cross-examination regarding

an unrelated sexual encounter; rather, it is that on the state

court record before the court, it is impossible to determine

whether, and to what extent, cross-examination regarding an

allegedly similar, allegedly false accusation should have been

permitted. This court is left with no choice but to make that

determination with the tools and procedures available to it in

the form of an evidentiary hearing (closed to non-parties, if

requested, in order to protect the complainant's privacy)13 with

strict limitations on the scope of such cross-examination. Fed.

R. Hab. Corp. 8(a). See 28 U.S.C. § 2254(e)(2); Townsend v.

Sain, 372 U.S. 293, 312 (1963) (partially overruled by Keeney v.

Tamayo-Reyes, 504 U.S. 1, 11-12 (1992), on other grounds)

(applicant for federal habeas entitled to evidentiary hearing

where "it appears the state trier of fact did not afford the

habeas applicant a full and fair hearing”).







raised under the Fourteenth Amendment. The motion is denied on

the cross-examination-based claims raised in the petition. An

evidentiary hearing will be scheduled by the Clerk to address the

issues raised in this order. As guidance to the parties, the

court leaves open for argument, as part of that hearing: (1) the

breadth of the cross-examination, if any, relating to the

allegedly false accusation that should have been allowed under

Rule 403; (2) whether, under White, it can be shown that the

prior accusation, if it occurred, was demonstrably false; and (3)

whether, if the hearing established that "preserved

constitutional error” occurred, the error had a "substantial,

injurious effect” on the court's verdict, or merely constituted

harmless error. See Sanna v. Dipaolo, 265 F.3d 1, 14 (2001).



The petitioner shall file a witness list ten days prior to

the hearing date in the Clerk's scheduling order, and the

respondent shall file a witness list seven days before the

hearing date. Upon a request by the respondent's counsel or a

representative of the complainant's interests, the courtroom

shall be closed to non-parties to the underlying state court

proceeding.

For the reasons stated above, summary judgment is granted in

part and denied in part. Summary judgment is granted to the

Warden with respect to Chretien’s extrinsic evidence-based claims

See Howard, 121 N.H. at 59.