Miller v. State, 779 P.2d 87 (Nev. 1989). · Go Syfert
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Miller v. State, 779 P.2d 87 (Nev. 1989). Cases Citing This Book View Copy Cite
“rior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute 'previous sexual conduct' for rape shield purposes.”
207 citation events (139 in the last 25 years) across 28 distinct courts.
Strongest positive: State Of Washington, Resp/cross-app V. Brogan R. Bartch, App/cross Resp. (washctapp, 2023-10-30)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 42 distinct citers.
examined Cited as authority (quoted) State Of Washington, Resp/cross-app V. Brogan R. Bartch, App/cross Resp. (2×)
Wash. Ct. App. · 2023 · quote attribution · 2 verbatim quotes · confidence low
rior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute 'previous sexual conduct' for rape shield purposes.
examined Cited as authority (rule) Jardine v. Williams (3×) also: Cited "see, e.g."
D. Nev. · 2025 · confidence medium
We’ve even talked to lieutenant colonels in the Department of the Navy over in the Inspector 23 24 2 In Nevada, a complaining witness is subject to cross-examination concerning prior false accusations of sexual assault provided the defendant is able “to prove by a preponderance of the evidence, in a hearing 25 outside the presence of the jury, that ‘(1) the accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial.’” 26 Brown v. State, 166, 807 P.2d 1379, 1380 (Nev. 1991) (quoti…
discussed Cited as authority (rule) Farnum v. LeGrand
D. Nev. · 2024 · confidence medium
To 17 show this, however, “the evidence” must “very clearly” lead to “the conclusion that a federal 18 claim was inadvertently overlooked in state court.” Id. at 303 . 19 Here, the Supreme Court of Nevada’s omission of any discussion of trial counsel’s failure 20 to request a Miller hearing in relation to A.R.’s false accusations was most likely due to 21 Farnum’s poor briefing of the issue rather than “a result of sheer inadvertence.” In any case, I 22 need not resolve the deference issue because the claim fails under de novo review. 23 1 In Nevada, a complaining witne…
cited Cited as authority (rule) State v. G. Hansen
Mont. · 2022 · confidence medium
Mazurek, 277 Mont. at 358 , 922 P.2d at 480 (citing Miller v. State, 779 P.2d 87, 90 (Nev. 1989)).
discussed Cited as authority (rule) Farnum v. LeGrand
D. Nev. · 2021 · confidence medium
Farnum failed to demonstrate that counsel’s 26 27 3 This refers to the hearing required by Miller v. State, 779 P.2d 87, 90 (Nev. 1989). decisions fell below the reasonableness standard enunciated in Strickland or that it 1 was likely the verdict would have otherwise been different.
discussed Cited as authority (rule) Sempier (Joel) v. Warden
Nev. · 2018 · confidence medium
While the rape shield statute would not bar evidence of prior false accusations of sexual assault, see Miller v. State, 105 Nev. 497, 500-01 , 779 P.2d 87, 89 (1989), the evidence presented at the evidentiary hearing failed to prove that the victim had made a false accusation of sexual assault or that counsel should have known about it.
cited Cited as authority (rule) State v. Hoff
Mont. · 2016 · confidence medium
Mazurek, 277 Mont. at 358 , 922 P.2d at 480 (citing Miller v. State, 779 P.2d 87, 90 (Nev. 1989)).
cited Cited as authority (rule) State v. Hoff
Mont. · 2016 · confidence medium
Mazurek, 277 Mont. at 358 , 922 P.2d at 480 (citing Miller v. State, 779 P.2d 87, 90 (Nev. 1989)).
discussed Cited as authority (rule) State v. Ring
Mont. · 2014 · confidence medium
Mazurek, 277 Mont. at 358 , 922 P.2d at 480 (quoting Miller v. State, 779 P.2d 87, 90 (Nev. 1989)). ¶19 Ring argues that the District Court refused his request to question S.H. about the existence and veracity of previous allegations based on an incorrect reading of Anderson .
discussed Cited as authority (rule) Leonard Pierson, Jr. v. State (2×)
Tex. App. · 2013 · confidence medium
See, e.g., Morgan v. State, 54 P.3d 332, 339 (Alaska Ct.App.2002) (preponderance); State v. Long, 140 S.W.3d 27, 32 (Mo. 2004) (preponderance); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 90 (1989) (preponderance).
examined Cited as authority (rule) Calvin Jackson v. Robert Legrand (3×) also: Cited "see"
9th Cir. · 2012 · confidence medium
Id. at 89-90.
discussed Cited as authority (rule) St. Germain v. State
Mont. · 2012 · confidence medium
This Court established the requirements for introducing prior false allegations in Mazurek, 277 Mont. at 358 , 922 P.2d at 480 (citing Miller v. State, 779 P.2d 87, 90 (Nev. 1989)), wherein this Court held that the defendant must establish at a pretrial hearing: (1) an accusation was in fact made; (2) the accusation was in fact false; and (3) the evidence is more probative than prejudicial. ¶56 The District Court concluded that Sather’s performance was not deficient when she failed to request a Mazurek hearing.
cited Cited as authority (rule) Hammer v. State
Tex. Crim. App. · 2009 · confidence medium
Thus, the credibility of the complaining witness was one of the basic issues presented to the jury.”); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1989). 42 .
cited Cited as authority (rule) Hammer, Murray
Tex. Crim. App. · 2009 · confidence medium
Thus, the credibility of the complaining witness was one of the basic issues presented to the jury.”); Miller v. State, 779 P.2d 87, 89 (Nev. 1989).
cited Cited as authority (rule) Hammer, Murray
Tex. Crim. App. · 2009 · confidence medium
Thus, the credibility of the complaining witness was one of the basic issues presented to the jury."); Miller v. State , 779 P.2d 87, 89 (Nev. 1989). 42.
discussed Cited as authority (rule) State Of Iowa Vs. Michael John Alberts
Iowa · 2006 · confidence medium
R.M.’s supposed statements make the incident sexual if it was not already. 13 preponderance of the evidence. 3 We agree with the Supreme Court of New Jersey that this “standard strikes the right balance, placing an initial burden on the defendant to justify the use of such evidence while not setting an exceedingly high threshold for its admission.” State v. Guenther, 854 A.2d 308, 324 (N.J. 2004); see also State v. West, 24 P.3d 648, 656 (Haw. 2001) (adopting preponderance of the evidence as the standard of proof a defendant must meet when seeking to prove the complaining witness made a …
discussed Cited as authority (rule) State v. Alberts
Iowa · 2006 · confidence medium
Thus, we hold a criminal defendant wishing to admit such evidence must first make a threshold showing to the trial judge outside the presence of the jury that (1) the complaining witness made the statements and (2) the statements are false, based on a preponderance of the evidence. 3 We agree with *410 the Supreme Court of New Jersey that this “standard strikes the right balance, placing an initial burden on the defendant to justify the use of such evidence while not setting an exceedingly high threshold for its admission.” State v. Guenther, 181 N.J. 129 , 854 A.2d 308, 324 (2004); see al…
examined Cited as authority (rule) Abbott v. State (4×)
Nev. · 2006 · confidence medium
Miller, 105 Nev. at 501 , 779 P.2d at 89 . [46] Miller, 105 Nev. at 502 , 779 P.2d at 90 . [47] Efrain M., 107 Nev. at 950 , 823 P.2d at 265 . [48] See Stamps v. State, 107 Nev. 372, 377 , 812 P.2d 351, 354 (1991) (concluding that defendant's confrontation rights were violated because he was unable to introduce evidence of prior false allegations to corroborate his theory that the victim-witness's mother instigated the entire incident). [49] Brown v. State, 107 Nev. 164, 167 , 807 P.2d 1379, 1381 (1991) (quoting Chambers v. Mississippi, 410 U.S. 284, 294 , 93 S.Ct. 1038 , 35 L.Ed.2d 297 (1973)…
discussed Cited as authority (rule) State v. Guenther
N.J. · 2004 · confidence medium
See, e.g., Morgan v. State, 54 P.3d 332, 336 (Alaska Ct.App. 2002); State v. Hutchinson, 141 Ariz. 583 , 688 P.2d 209, 212-13 (Ct.App.1984) (interpreting State ex rel Pope v. Superior Court, 113 Ariz. 22 , 545 P.2d 946, 953 (1976)); West v. State, 290 Ark. 329 , 719 S. W.2d 684, 686-87 (1986), reh’g denied, 290 Ark. 329 , 722 S.W.2d 284 (1987); State v. Schwartzmiller, 107 Idaho 89 , 685 P.2d 830, 833 (1984); State v. Gordon, 146 N.H. 258 , 770 A.2d 702, 704-05 (2001); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89-90 (1989).
examined Cited as authority (rule) State v. Long (4×)
Mo. · 2004 · confidence medium
Morgan v. State, 54 P.3d 332, 333 (Alaska App.2002); State v. Walton, 715 N.E.2d 824 (Ind.1999); Clibum v. State, 710 So.2d 669, 670 (Fla. 2d DCA 1998) (prior false allegation of kidnapping admissible); Beck v. State, 1991 OK CR 126 , 824 P.2d 385 (1991); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1989); Smith v. State, 259 Ga. 135 , 377 S.E.2d 158, 160 (1989); State v. Barber, 13 Kan.App.2d 224 , 766 P.2d 1288, 1290 (1989); Clinebell v. Commonwealth, 235 Va. 319 , 368 S.E.2d 263, 263 (1988); State v. Anderson, 211 Mont. 272 , 686 P.2d 193, 199-200 (1984); People v. Mikula, 84 Mich.App. …
discussed Cited as authority (rule) Benn v. Greiner
E.D.N.Y · 2003 · confidence medium
Cf. Kelly v. Meachum, 950 F.Supp. 461, 471 (D.Conn.1996) (suggesting that cross-examination of a complainant about prior false allegations of sexual assault requires a defendant to show, by a preponderance of the evidence, that (1) the earlier or later accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial (citing Miller v. Nevada, 105 Nev. 497 , 779 P.2d 87, 90 (1989))).
discussed Cited as authority (rule) State v. Raines
Mo. Ct. App. · 2003 · confidence medium
See Booker v. State, 334 Ark. 434 , 976 S.W.2d 918, 919 (1998); Smith v. State, 259 Ga. 135 , 377 S.E.2d 158, 160 (1989); State v. West, 95 Hawai'i 452 , 24 P.3d 648, 654 (Haw.2001); People v. Grano, 286 Ill.App.3d 278, 288 , 221 Ill.Dec. 727 , 676 N.E.2d 248 (1996); State v. Walton, 715 N.E.2d 824, 826 (Ind.1999); State v. Smith, 743 So.2d 199, 202-03 (La.1999); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1999); State v. Bray, 356 N.J.Super. 485 , 813 A.2d 571, 577 (2003); State v. Thompson, 139 N.C.App. 299 , 533 S.E.2d 834, 841 (2000); State v. Martin, 984 P.2d 975, 979 (Utah 1999); St…
discussed Cited as authority (rule) State v. Bray (2×)
N.J. Super. Ct. App. Div. · 2003 · confidence medium
See, e.g., Booker v. State, 334 Ark. 434 , 976 S.W. 2d 918, 919 (1998) (prior false allegations by victim of sexual conduct is not evidence of "prior sexual conduct" that is excluded by the rape shield statute but instead is evidence of prior misconduct of the alleged victim that has a direct bearing upon the alleged victim's credibility); Smith v. State, 259 Ga. 135 , 377 S.E. 2d 158, 160 (1989) (evidence of previous false allegations of sexual abuse by the victim does not fall within the proscription of the rape-shield laws); State v. West, 95 Hawai`i 452, 24 P.3d 648, 654 (2001) (false alle…
examined Cited as authority (rule) Morgan v. State (5×) also: Cited "see"
Alaska Ct. App. · 2002 · confidence medium
See Smith v. State, 259 Ga. 135 , 377 S.E.2d 158, 160 (1989); People v. McClure, 42 Ill.App.3d 952 , 1 Ill.Dec. 617 , 356 N.E.2d 899, 901 (1976); Little v. State, 413 N.E.2d 639, 643 (Ind.App.1980); Beck v. State, 824 P.2d 385, 388-89 (Okla.Crim.App.1991); State v. Izzi, 115 R.I. 487 , 348 A.2d 371, 372-73 (1975); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89-90 (1989). .
examined Cited as authority (rule) State v. West (4×) also: Cited "see, e.g."
Haw. · 2001 · confidence medium
The trial court must then order a hearing, outside the presence *459 of the jury, to determine the propriety of such questioning and the admissibility of corroborative evidence. 779 P.2d at 90 (emphasis added).
discussed Cited as authority (rule) State v. Wyrick
Tenn. Crim. App. · 2001 · confidence medium
See West v. State, 290 Ark. 329 , 719 S.W.2d 684, 687 (1986) (holding that evidence of prior false claim to be admissible to discredit the credibility of the victim as well as to raise doubt about the truth of the current charges); People v. Hurlburt, 166 Cal.App.2d 334 , 333 P.2d 82, 85-87 (1958) (advocating a liberal rule for admitting evidence of the victim’s prior false accusations of sexual assault in order for the jury to have sufficient information to render a just verdict); Smith v. State, 259 Ga. 135 , 377 S.E.2d 158, 160 (1989) (holding that prior false accusations of sexual offens…
discussed Cited as authority (rule) State s. Anthony Lynn Wyrick
Tenn. Crim. App. · 2000 · confidence medium
Ct. App. 1958) (advocating a liberal rule for admitting evidence of the victim’s prior false accusations of sexual assault in order for the jury to have sufficient information to render a just verdict); Smith v. State, 377 S.E.2d 158, 160 (Ga. 1989) (holding that prior false accusations of sexual offenses are admissible to attack the victim’s credibility and substantively to prove that the present offense did not happen); People v. Evans, 40 N.W. 473, 478 (Mich. 1888) (holding that evidence of prior false accusations shows that the victim has a “morbid condition of mind and body” and h…
examined Cited as authority (rule) State v. West (3×) also: Cited "see, e.g."
Haw. App. · 2000 · confidence medium
Little v. State, 413 N.E.2d 639, 643 (Ind.Ct.App.1980); Cox v. State, 51 Md.App. 271 , 443 A.2d 607, 613 (1982) (recanted rape charges have "no relation to Ae chastity or any sexual misconduct of the [complainant]" so not within ambit of rape shield law); Commonwealth v. Bohannon, 376 Mass. 90 , 378 N.E.2d 987, 990-92 (1978) (proposed cross-examination concerning complainant's false rape allegations did not relate to her prior sexual activity or reputation for chastity so rape shield statute inapplicable); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1989) (false accusations of sexual abus…
discussed Cited as authority (rule) State v. Walton
Ind. · 1999 · confidence medium
E.g., Clinebell, 368 S.E.2d at 265-66 ; Commonwealth v. Bohannon, 376 Mass. 90 , 378 N.E.2d 987, 990-91 (1978); West v. State, 290 Ark. 329 , 719 S.W.2d 684, 687 (1986); State v. Anderson, 211 Mont. 272 , 686 P.2d 193, 198-201 (1984); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1989); Smith v. State, 259 Ga. 135 , 377 S.E.2d 158, 160 , cert. denied, 493 U.S. 825 , 110 S.Ct. 88 , 107 L.Ed.2d 53 (1989). 9 .
discussed Cited as authority (rule) State v. Ellsworth (2×)
N.H. · 1998 · confidence medium
See id.; Miller v. State, 779 P.2d 87, 90 (Nev. 1989).
discussed Cited as authority (rule) State v. Chamley (2×)
S.D. · 1997 · confidence medium
Mazurek v. District Court of Fourth Judicial District, 277 Mont. 349 , 922 P.2d 474, 480 (1996); Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1989); State v. Barber, 13 Kan.App.2d 224 , 766 P.2d 1288, 1290 (1989).
cited Cited as authority (rule) Kelly v. Meachum
D. Conn. · 1996 · confidence medium
Miller v. Nevada, 105 Nev. 497 , 779 P.2d 87, 90 (1989).
discussed Cited as authority (rule) State Ex Rel. Mazurek v. District Court of Montana Fourth Judicial District (2×)
Mont. · 1996 · confidence medium
The Nevada Supreme Court determined that “a threshold inquiry must establish both the fact of the accusations and the falsity thereof even before defense counsel launches into cross-examination.” Miller, 779 P.2d at 90 (citation omitted).
discussed Cited as authority (rule) State v. Goodnow
Vt. · 1994 · confidence medium
Ct. App. 1989) (requiring threshold showing that prior allegations have “a reason *530 able probability of falsity”); Miller v. State, 779 P.2d 87, 90 (Nev. 1989) (requiring threshold showing that prior allegations are false by a preponderance of the evidence).
discussed Cited as authority (rule) EFRAIN M. v. State
Nev. · 1991 · confidence medium
In Miller v. State, 105 Nev. 497, 501 , 779 P.2d 87, 89 (1989), we explained that “prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute ‘previous sexual conduct’ for rape shield purposes”; therefore, “NRS 50.090 does not bar the cross-examination of a complaining witness about prior false accusations [concerning sexual behavior].” We specified that “defense counsel may cross-examine a complaining witness about previous fabricated accusations, and if the witness denies making the allegations, counsel may introduce extrinsic evidence …
cited Cited "see" State v. Gordon
N.H. · 2001 · signal: see · confidence high
See Miller v. State, 779 P.2d 87, 90 (Nev. 1989); see also Com. v. Hrycenko, 630 N.E.2d 258, 264 (Mass. 1994).
discussed Cited "see" State v. Smith (2×)
La. · 1999 · signal: see · confidence high
See Miller v. State, 105 Nev. 497 , 779 P.2d 87, 89 (1989) and cases cited therein; Clinebell v. Commonwealth, 235 Va. 319 , 368 S.E.2d 263, 264 (1988) and cases cited therein; Commonwealth v. Bohannon, 376 Mass. 90 , 378 N.E.2d 987, 991 (1978).
discussed Cited "see" State v. Boggs (2×)
Ohio · 1992 · signal: see · confidence high
See Miller v. State (1989), 105 Nev. 497, 500-501 , 779 P.2d 87, 89 ; Smith v. State (1989), 259 Ga. 135, 137 , 377 S.E.2d 158, 160 ; Clinebell v. Commonwealth (1988), 235 Va. 319, 322 , 368 S.E.2d 263, 264 ; Commonwealth v. Bohannon (1978), 376 Mass. 90, 95 , 378 N.E.2d 987, 991-992 ; State v. Barber (1989), 13 Kan.App.2d 224, 226 , 766 P.2d 1288, 1289-1290 ; Covington v. State (Alaska App.1985), 703 P.2d 436, 442 ; State v. LeClair (1986), 83 Ore.App. 121, 126-127, 730 P.2d 609, 613 ; Little v. State (Ind.App.1980), 413 N.E.2d 639, 643 .
discussed Cited "see, e.g." In re: GH.
Haw. · 2022 · signal: see, e.g. · confidence low
See, e.g., Miller v. State, 779 P.2d 87 (Nev. 1989); Clinebell v. Commonwealth, 368 S.E.2d 263 (Va. 1988). 17 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND THE PACIFIC REPORTER *** court is unable to determine by a preponderance of the evidence that the statement is false, the defendant has failed to meet [their] burden, and the evidence may be properly excluded. 95 Hawaiʻi at 460, 24 P.3d at 656 .
discussed Cited "see, e.g." Jardine (Hector) v. State (2×)
Nev. · 2014 · signal: see also · confidence low
See NRS 50.090; see also Miller v. State, 105 Nev. 497, 502 , 779 P.2d 87, 90 (1989) (discussing that prior to admission of a victim's prior sexual abuse allegation, a defendant must establish by a preponderance of the evidence that the victim made an accusation, the accusation was false, and that the evidence is more probative than prejudicial).
discussed Cited "see, e.g." Commonwealth v. Appenzeller (2×)
Pa. · 1989 · signal: compare · confidence low
Compare Miller v. Nevada, ___ Nev. ___, 779 P.2d 87 (1989) (prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute "previous sexual conduct" for rape shield purposes).
discussed Cited "see, e.g." Commonwealth v. Johnson (2×)
Pa. · 1989 · signal: compare · confidence low
Compare Miller v. State, ___ Nev. ___, 779 P.2d 87 (1989) (prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute "previous sexual conduct" for rape shield purposes).
DWIGHT WAYNE MILLER, Appellant,
v.
THE STATE OF NEVADA, Respondent
19166.
Nevada Supreme Court.
Sep 6, 1989.
779 P.2d 87
Robert Bruce Lindsay, Reno, for Appellant., Brian McKay, Attorney General, Carson City, and Jack T. Bullock, District Attorney, Edward Reed, Deputy District Attorney, Humboldt County, for Respondent.
Steffen, Springer, Mowbray, Rose, Mosley.
Cited by 100 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 58%
Citer courts: Court of Appeals of Washington (2)

Lead Opinion

OPINION

By the Court,

Steffen, J.:

This appeal presents the question of whether defense counsel may cross-examine, for impeachment purposes, an alleged sexual assault victim concerning prior fabricated rape accusations. We conclude that under certain conditions, such a practice is permissible. However, for reasons discussed below and under the facts[*499] of this case, we conclude that it is not appropriate to reverse and remand to the trial court to give Miller an opportunity to cross-examine the complaining witness in such a fashion. Accordingly, we affirm.

On December 7, 1987, the complaining witness reported to a school counselor that Miller had sexually assaulted her. The police were subsequently notified and officers interviewed her. Based upon information obtained from the complaining witness and other pertinent evidence, Miller was arrested on December 8, 1987. On December 31, 1987, Miller was charged by information with sexual assault, a violation of NRS 200.366, and battery with intent to commit sexual assault, a breach of NRS 200.400. At a later arraignment, Miller entered a plea of not guilty.

Miller’s jury trial was scheduled to commence on March 15, 1988. Prior to jury selection, the State requested that the trial judge disallow defense counsel’s cross-examination of the complaining witness concerning prior allegations of rape or molestation. The State admitted that in 1986 the complaining witness reported that her uncle had molested her. The State also noted that although the Attorney General’s office investigated the allegations, charges were not filed.[1] The State argued that under such circumstances, the victim’s prior accusation was not relevant to the question of her credibility and current sexual assault charges.

After reviewing, apparently for the first time, the Humboldt County Sheriff’s Office file concerning the alleged incident between the complaining witness and her uncle, defense counsel argued that in reality, the complaining witness had twice accused her uncle of sexually abusing her or attempting to sexually abuse her. When the trial judge asked defense counsel whether he had other evidence regarding the victim’s prior accusations, he responded that the Humboldt County Sheriff’s file was the only information he had. As a result, the district court ruled that any cross-examination of the complaining witness concerning prior rape or sexual abuse allegations was precluded by NRS 50.090,[2] Nevada’s rape shield statute.

[*500] Eventually Miller was tried and convicted of sexual assault.[3] He was sentenced to life imprisonment with the possibility of parole after five years. On appeal, Miller alleges, inter alia, that the lower court abused its discretion in denying Miller the opportunity to cross-examine the complaining witness regarding prior sexual abuse accusations which may have been false.

At the outset, it is important to recognize in a sexual assault case that the complaining witness’ credibility is critical and thus an alleged victim’s prior fabricated accusations of sexual abuse or sexual assault are highly probative of a complaining witness’ credibility concerning current sexual assault charges. See Little v. State, 413 N.E.2d 639, 643 (Ind.App. 1980). As professor Wigmore explains:

Occasionally is found in woman complainants, testifying to sex offenses by men, a dangerous form of abnormal mentality — dangerous here, because it affects testimonial trustworthiness while not affecting other mental operations. It consists in a disposition to fabricate irresponsibly charges of sex offenses against persons totally innocent. . . . Sometimes it is associated with unchaste conduct in the witness, sometimes not. But its nature is well known to psychiatrists and is recognizable by them. Testimony to its existence in an individual should always be receivable.

3A Wigmore On Evidence § 934a (Chadbourn rev. ed. 1970).

We next conclude, along with a number of sister states,[4] that[*501] prior false accusations of sexual abuse or sexual assault by complaining witnesses do not constitute “previous sexual conduct” for rape shield purposes. Specifically, in such cases, the defendant is not attempting to inquire into the complaining witness’ sexual history to reveal unchaste character. On the contrary, the defendant seeks to prove for impeachment purposes that the complaining witness has, in the past, made false accusations concerning sexual behavior. See Clinebell v. Com., 368 S.E.2d 263, 264 (Va. 1988).

We hold, therefore, that in a sexual assault case, NRS 50.090 does not bar the cross-examination of a complaining witness about prior false accusations. Accordingly, under conditions specified hereafter, defense counsel may cross-examine a complaining witness about previous fabricated accusations, and if the witness denies making the allegations, counsel may introduce extrinsic evidence to prove that, in the past, fabricated charges were made. See Id. at 266. See also People v. Mikula, 289 N.W.2d 195, 198-199 (Mich.App. 1978).

We recognize that our ruling impinges on the constraints imposed by NRS 50.085(3), Nevada’s collateral evidence rule.[5] Specifically, NRS 50.085(3) permits cross-examination of a witness into specific instances of conduct. However, if the witness denies the past conduct, extrinsic evidence to disprove the denial is generally not admissible. See Moore v. State, 96 Nev. 220, 224-225, 607 P.2d 105, 107-108 (1980). To the extent that our holding transcends the limitations of NRS 50.085(3), we carve out an exception for sexual assault cases.[6]

Such an exception is in pari ratione with this court’s current position regarding sexual assault cases and the admissibility of extrinsic impeachment evidence against defendants. Specifically, in Berner v. State, 104 Nev. 695, 765 P.2d 1144 (1988), we held[*502] that, under certain circumstances, NRS 50.085(3) does not bar the prosecution from introducing extrinsic misconduct evidence against defendants in sexual assault cases. Id. at 1146.

As a prerequisite to admitting a complaining witness’ prior sexual assault and sexual abuse accusations and corroborative extrinsic evidence proving the falsity thereof, a threshold inquiry must establish both the fact of the accusations and the falsity thereof even before defense counsel launches into cross-examination. See Covington v. Alaska, 703 P.2d 436, 442 (Alaska 1985); Clinebell, 368 S.E.2d at 266. Thus, if a defendant in a sexual assault case proposes to cross-examine the complaining witness about prior false sexual assault or sexual abuse allegations and introduce corroborative evidence, he must, prior to such questioning, file written notice of his intent. The trial court must then order a hearing, outside the presence of the jury, to determine the propriety of such questioning and the admissibility of corroborative evidence. In making such a determination, the defendant must establish, by a preponderance of the evidence, that (1) the accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial. Cf. Berner, 104 Nev. at 697, 765 P.2d at 1145.[7] If the defendant satisfies these three conditions, the trial court will authorize cross-examination of the complaining witness concerning the alleged false accusations. The defendant may thereafter present extrinsic evidence of the false accusations only if the complaining witness denies or fails to recall having made such accusations.

Application of the foregoing standard to the instant case reveals that the trial court correctly precluded cross-examination into past allegations of sexual abuse. Specifically, although the complaining witness clearly made prior accusations, Miller failed to make the requisite evidentiary showing to establish that the prior[*503] allegations were in fact false. More specifically, the only available evidence of alleged falsity was a number of vague references to the Attorney General’s motivation for not going forward with the complaining witness’ prior sexual abuse allegations. Accordingly, it was proper to deny cross-examination.

We have carefully considered other issues raised on appeal but not discussed herein and conclude that they lack merit. Accordingly, we affirm the judgment entered below.

Mowbray and Rose, JJ., and Mosley, D. J.,[8] concur.
1

The record is not clear as to why charges were not filed. The State suggested that the Attorney General felt that the accusations were too old and that the State was worried about a credibility battle between the complaining witness and her uncle.

2

NRS 50.090 provides:

In any prosecution for sexual assault or statutory sexual seduction or for assault with intent to commit, attempt to commit or conspiracy to commit either crime, the accused may not present evidence of any previous sexual conduct of the victim of the crime to challenge the victim’s credibility as a witness unless the prosecutor has presented evidence or the victim has testified concerning such conduct, or the[*500] absence of such conduct, in which case the scope of the accused’s cross-examination of the victim or rebuttal shall be limited to the evidence presented by the prosecutor or victim.
3

The district court had previously ruled that battery with intent to commit sexual assault was a lesser included offense of sexual assault.

4

See, e.g., Cox v. State, 443 A.2d 607, 613 (Md.App. 1982) (false recanted testimony not related to chastity or sexual conduct); Com. v. Bohannon, 378 N.E.2d 987, 991-92 (Mass. 1978) (proposed cross-examination questions concerning whether complainant previously had made false rape allegations did not relate to her prior sexual activity or reputation for chastity; thus, rape shield statute inapplicable); State v. Durham, 327 S.E.2d 920, 926 (N.C.App. 1985) (child’s accusation of abuse by father, told to mother, evidence of conversation or language and, therefore, not excluded by rape shield statute); State v. LeClair, 730 P.2d 609, 613 (Or.App. 1986) (evidence of child’s previous false accusations of sexual abuse not evidence of past sexual behavior under rape shield law); Clinebell v. Com., 368 S.E.2d 263, 264 (Va. 1988) (false statements concerning sexual behavior not “conduct”).

5

NRS 50.085(3) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be proved by extrinsic evidence. They may, however, if relevant to truthfulness, be inquired into on cross-examination of the witness himself or on cross-examination of a witness who testifies to an opinion of his character for truthfulness or untruthfulness, subject to the general limitations upon relevant evidence and the limitations upon interrogation and subject to the provisions of NRS 50.090.
6

We note that other jurisdictions that have dealt with this problem either ignore their collateral evidence rules or simply take the position that such proof constitutes substantive evidence. Galvin, Shielding Rape Victims in the State and Federal Court: A proposal for the Second Decade, 70 Minn. L. Rev. 764, 860 (1986).

7

Other jurisdictions apply various standards of proof. For example, in Little, 413 N.E.2d at 643, the court stated that prior charges “must be demonstrably false.” In Covington v. State, 703 P.2d 436, 442 (Alaska App. 1985), the court stated that such evidence was admissible “only if the defendant makes a showing out of the presence of the jury that the witness’ prior allegations of sexual assault were false, as, for example, where the charges somehow had been disproved or where the witness had conceded their falsity.” Com. v. Bohannon, 378 N.E.2d 987, 991 (Mass. 1978), required some “factual basis” of falsity. Finally, in Hughes v. Raines, 641 F.2d 790, 792 (9th Cir. 1981), the court stated that the probativeness of a prior rape charge “would depend upon whether it could be shown convincingly that the other charge was false.”

Dissent

Springer, J.,

dissenting:

The reason that I cannot join with the majority, although I agree entirely with its reasoning, is that I do not think it is fair to expect defense counsel to have followed the somewhat complex procedures required by the majority opinion. I would send the case back for retrial so that evidential questions relating to admissibility of false accusations of sexual misconduct could be dealt with in accordance with Miller.

Defense counsel tried to bring before the court evidence that the complaining witness had a habit of falsely accusing people of accosting her in a sexual manner. Defense counsel was told in effect to sit down and not to pursue the matter at all because it constituted a violation of the rape shield law. Neither the court nor counsel can be faulted for not then realizing that as “a prerequisite to admitting a complaining witness’s prior sexual assault and sexual abuse accusations and corroborative extrinsic evidence proving the falsity thereof, a threshold inquiry must establish both the fact of the accusations and the falsity thereof even before defense counsel launches into cross examination.” Even less could the court and counsel be expected to know that as a condition of being allowed to cross examine in these cases defense counsel “must file written notice of his intent.” The trial judge could not possibly have known either that he was required to “order a hearing, outside the presence of the jury, to determine the propriety of such questioning and the admissibility of corroborative evidence.” Even less, without a copy of Miller in hand, could the judge be expected to have applied the required burden of proof to each of the enumerated requisites listed in the majority opinion at pages six and seven.

The defendant in this case had only one real defense and that was his accuser’s penchant for making false and indiscriminate charges of the same nature as those that were being made against[*504] him. Miller was prevented from asserting this defense principally because of his lack of precognition. He, as well as the trial judge, were simply not able to foresee what this court was going to say on the subject. This inability to predict what now becomes the mandated procedure in these kinds of cases is what disabled him from presenting his defense. I think this is unfair. I would give him a chance to present his defense and would send the case back for trial.