II.
The trial court abused its discretion when it allowed prosecution expert Dr.
Anthony Urquiza to testify about the percentage of child sex abuse allegations that
are false, violating Mr. XXXXXX’s constitutional rights, including his right to the
presumption of innocence and to due process.
In another instance in which Mr. XXXXXX’s trial was tainted by evidence that
had nothing to do with whether he had committed the acts alleged, or whether he had
done so with lewd intent, the prosecution introduced, over objection, testimony that false
allegations of child sexual abuse are made only very infrequently, at a rate of one to eight
percent. (3RT 506-507.) Though the court, on admitting the evidence, cautioned that the
prosecutor was “not to . . . argue[] that because it’s so low, of course Mr. XXXXXX is
guilty” (1RT 138), the only inference to be drawn from the testimony was that children
rarely make false reports of sexual abuse, and thus the children in this case were likely
testifying accurately and truthfully, and therefore Mr. XXXXXX is guilty.
California has been a leader in condemning trial by statistics, and courts from
around the country have condemned the same type of statistical testimony presented here.
Dr. Urquiza’s statistical testimony encouraged jurors to draw the facile, but completely
unwarranted, conclusion that there was an overwhelming probability that Mr. XXXXXX
was guilty. This testimony violated Mr. XXXXXX’s constitutional rights, including his
due process right to the presumption of innocence: It informed the jury that even before
they considered any evidence specific to this case, and based only on the fact that an
accusation had been made, there was a 92 to 99 percent chance that Mr. XXXXXX was
guilty. In effect, this testimony transformed the fact that an accusation had been made
into a high probability of guilt.
Because this error was not harmless beyond a reasonable doubt, or under any
standard, Mr. XXXXXX respectfully asks this Court to reverse his convictions.
A.
Proceedings below.
Before trial, the defense asked the court to preclude testimony by Dr. Anthony
Urquiza, the prosecution’s expert on “Child Sexual Abuse Accommodation Syndrome,”
regarding the percentage of child sexual abuse allegations that are false. (2CT 516; see
1RT 122-123, 135-137.)1 The defense contended that the evidence was irrelevant and
lacked foundation, noting that that such estimates are often misleading because they do
not include good faith but untrue reports, or unsubstantiated reports. (2CT 520.) The
court ruled the testimony admissible, with the “caveat” that the prosecutor was not to
argue that “because it’s so low, of course Mr. XXXXXX is guilty . . . .” (1RT 138.)2
Dr. Urquiza testified that there were twelve to fifteen “groups of studies” in the
area of false allegations of sexual abuse. (3RT 507.) He explained the difference between
false memories and false reports. (3RT 505.) A false report is when a child knowingly
lies. (3RT 505.) A false memory is when a child believes he has been sexually abused but
1
Counsel had objected to this testimony before Mr. XXXXXX’s first trial as
well, and had requested an Evidence Code section 402 hearing on the matter. (8ART
1250.) The trial court denied the defense motion to preclude the false allegation
testimony and denied the defense request for a hearing, stating that if defense counsel
found fault with the studies Urquiza relied on he could explore that on cross-examination.
(8ART 1250-1251.)
2
The prosecutor had originally agreed that the relevance of Urquiza’s
statistics was “just to show how low it is” (1RT 122), though he later contended that the
statistics were necessary to prospectively rebut Dr. Ermshar’s testimony (1RT 135.)
the abuse did not happen. (3RT 505.) He told the jury that there was “not a lot of
research” on false memories. (3RT 505.)
With respect to false reports, he described the research as follows:
Q
How definitive is this research, in your opinion? How much does it
help us understand the numbers of false reporting cases?
A
I would – I would be reluctant to say a specific percentage, you
know, X percentage of kids make false allegations of sexual abuse, because
we just don’t know enough about that. I think a range is better, and a range
would be a range of what the current studies reflect, and that range really
falls, at least in my opinion, to: Do false allegations happen? Yes. Do they
happen often? No.
I think it’s a very rare or infrequent occurrence, given
the data that we have on sexual abuse, which has — that
range roughly from about one percent to eight percent of
cases that we know about, where a child made an allegation
that was determined to be false.
Probably the best study is a Canadian study that was — I
think it was . . . four or six percent, where it was determined that it
was a false allegation. And, interestingly, in that study none of the
kids made the allegation that was determined to be false. It was
somebody else in that child’s life, which then leads to the belief is
false allegations are more commonly found in some type of custodial
dispute. Husband/wife get divorced and, as a way to acquire custody
of a child, an allegation of sexual abuse that’s false arises.
(3RT 506-507.)3
On cross-examination, defense counsel elicited that the Canadian study involved
cases identified through child protective services and law enforcement. (3RT 515.) The
3
The Canadian study Urquiza referred to was cited by the prosecution in a
submission to the court reproduced at ACT 37 and is available online at
leadershipcouncil.org/docs/trocme.pdf (Trocme & Bala, Child Abuse & Neglect 29
(2005) 1333-1345 [“Trocme & Bala (2005)”].
study was not limited to contested cases in which the defendant exercised his right to a
trial. (3RT 519.) The prosecutor’s objection was sustained when defense counsel tried to
clarify that Urquiza was not claiming that only six percent of the cases going to trial
involved false allegations. (3RT 520.)
On redirect, the prosecutor elicited that Urquiza was not aware of any portion of
the Canadian study that involved multiple children all making accusations against one
person. (3RT 548.) He also elicited that it would be “invalid[]” to look at the Canadian
study and attempt to isolate the cases that went to trial and estimate a false allegation rate
for that subset. (3RT 548.)
B.
Dr. Urquiza’s testimony on the percentage of false allegations was irrelevant,
was more prejudicial than probative, and violated Mr. XXXXXX’s right to due
process of law and a fair trial.
The purported relevance of the testimony was to show that the incidence of false
reports is very low, in order to prospectively rebut Dr. Ermshar’s testimony about
suggestibility. But Dr. Urquiza’s testimony about the percentage of allegations that are
false was not relevant to rebut Dr. Ermshar, or for any other purpose.
1.
Dr. Urquiza’s statistics were not admissible as prospective rebuttal to
Dr. Ermshar’s testimony about memory, suggestibility, and group conformity.
As Dr. Urquiza himself conceded, the studies he referred to on false reports did
not address false memories. (3RT 505-508.) They were thus not responsive to Dr.
Ermshar’s testimony about unintentionally false allegations that were the product of
suggestibility. (See, e.g., 9RT 1838, 1864, 1867-1868 [Dr. Ermshar’s testimony, making
clear that suggestibility, false memory, and group conformity do not involve intentional
lying].) That a certain percentage of allegations are intentionally false says nothing at all
about what percentage of allegations are the product of false memory.4
More, as defense counsel made clear in objecting to Dr. Urquiza’s statistics
testimony during Mr. XXXXXX’s first trial, he did not plan to have Dr. Ermshar testify
about percentages (8ART 1250); thus, Dr. Urquiza’s statistics were improper rebuttal.5
Had Dr. Ermshar testified that suggestibility, group conformity, or false memory are
present in a certain percentage of cases, of course the prosecution would be entitled to
present expert testimony, in rebuttal, that those statistics were wrong and that those
phenomena were present only in a smaller percentage of cases. Dr. Ermshar’s testimony,
however, included no such statistics.
The prosecution was entitled to rebut Dr. Ermshar’s testimony with expert
testimony contradicting her opinions on memory and suggestibility. It could, for example,
bring in an expert to testify that the factors Dr. Ermshar identified as contributing to
4
Cf. Collins, supra, 68 Cal.2d at pp. 328-329 [probability testimony
improper even where expert appeared to acknowledge that proof of statistical
independence — which was entirely lacking — would be necessary to properly apply the
theory he testified about].
5
As noted above in Argument III.A., before Mr. XXXXXX’s second trial,
defense counsel again asked to preclude Dr. Urquiza’s testimony about the percentage of
child sex abuse allegations that are false. (1RT 122, 134.) The prosecution contended that
Dr. Urquiza’s testimony about the percentage of child sexual abuse allegations that are
false was necessary to “preempt[]” Dr. Ermshar’s anticipated testimony about
suggestibility. (1RT 123.) He contended, apparently based on Dr. Ermshar’s testimony in
the first trial, that Dr. Ermshar “will discuss studies showing percentages of false reports
in these general scenarios.” (1RT 136.)
Of course, Dr. Ermshar’s testimony in the first trial was given after the
court had ruled that the prosecution could introduce testimony about the percentage of
allegations that are false, and after the prosecution had done so, thus putting to rest any
contention that the defense somehow opened the door to Dr. Urquiza’s testimony. (8ART
1251 [court ruling]; 14ART 2513 [Ermshar’s testimony begins].)
suggestibility had nothing to do with suggestibility — if such an expert existed. But
absent testimony by Dr. Ermshar that a certain percentage of cases involved false reports,
Dr. Urquiza’s testimony was improper as preemptive rebuttal.
2.
Dr. Urquiza’s testimony was irrelevant, lacking in foundation, and
highly misleading.
Trial by statistics has been condemned by the California Supreme Court. In
Collins, supra, 68 Cal.2d 319, the prosecutor called a mathematics instructor who
testified that assuming the robbery at issue was committed by a couple with six particular
characteristics — including that the woman was white and had a blond ponytail and the
man was black and had a beard and mustache — there was an overwhelming probability
that the crime was committed by any couple who met that description. (Id. at p. 325.) The
defendants, of course, met that description. (Ibid.) The prosecutor, by hypothetical,
assigned probabilities to the various factors involved (e.g., the race of each of the
suspects, the blond ponytail, the mustache), and then applied the “product rule,” as
explained by the expert, arriving at a probability that there was one chance in 12 million
that any couple possessed that set of characteristics. (Id. at pp. 325-326.)
The California Supreme Court condemned the evidence, holding not only that the
testimony lacked an adequate foundation, but also that “the entire enterprise upon which
the prosecution embarked, and which was directed to the objective of measuring the
likelihood of a random couple possessing the characteristics allegedly distinguishing the
robbers, was gravely misguided.” (Collins, supra, 68 Cal.2d at p. 329.)
Here, similarly, the prosecution’s attempt to prove its case with the aid of Dr.
Urquiza’s testimony that the rate of false allegations was “from about one percent to eight
percent,” with the best study revealing a rate of “four or six percent” (3RT 506), was
gravely misguided. Because in this case, like most cases of this type, guilt or innocence
turned on the credibility of the complainants versus the credibility of Mr. XXXXXX and
the defense witnesses, allowing testimony that children make false allegations only very
rarely was, as trial counsel argued, tantamount to allowing, in a murder case, testimony
that 98% of people accused of murder are guilty. (1RT 136.)
As the Court explained in Collins: “Confronted with an equation which purports to
yield a numerical index of probable guilt, few juries could resist the temptation to accord
disproportionate weight to that index . . . .” (Collins, supra, 68 Cal.2d at p. 330; see State
v. Myers (Iowa 1986) 382 N.W.2d 91, 94 [in holding inadmissible evidence that children
almost never lie about sexual abuse, noting: “Typically, the truthfulness of the victim or
the accused bears heavily upon, and is intertwined with, the guilt or innocence of the
accused.”]; see also Weinstein’s Federal Evidence § 403.05(3)(c)(ii) (2015) [“Statistics
may suggest to the jury that the probability that the ultimate fact to be proved is true can
be equated with the statistical probability offered in evidence.”].)
Evidence that 95% of people accused of murder are guilty — or that 95% of
prosecution witnesses tell the truth, or that 96% of alibis are false, or that 94% of
confessions are true, or that 97% of assault victims correctly identify their assailants —
would in fact make it more likely that any particular defendant is guilty. But such
evidence has no legitimate relevance. (Collins, supra, 68 Cal.2d at p. 330 [statistical
evidence “could furnish the jury with absolutely no guidance on the crucial issue”].)6
The percentages Dr. Urquiza testified about were not only irrelevant for any
legitimate purpose but, like the probabilities improperly admitted in Collins, they were
lacking in foundation and were highly misleading. (Collins, supra, 68 Cal.2d at pp. 327328; see People v. Morrison (2004) 34 Cal.4th 698, 711 [evidence is irrelevant if it leads
only to speculative inferences].)
First, Urquiza’s testimony that one to eight percent of child sexual abuse
allegations are false (3RT 506) suggested that the remaining 92-99% of allegations are
true. Examination of the Canadian study Urquiza referred to makes clear that that is
decidedly not the case. This study examined 798 cases and concluded that 38% were
substantiated, 20% were “suspected,” 36% were unsubstantiated, and 6% were
intentionally false. (Trocme & Bala (2005), at p. 1340, table 3.) Dr. Urquiza, however,
testified only about the small percentage of intentionally false reports, leaving the
incorrect impression that the remaining 91-98% (or, using the numbers from the
Canadian study, 94-96%) were true.
Second, Urquiza offered no explanation as to how the studies he relied on
determined that an allegation was false, or what standard of proof was applied in
determining that an allegation was false. As the materials the prosecutor submitted to the
court made clear, the studies’ samples consisted of cases presented to medical personnel,
6
Urquiza’s statistics in this case were even more irrelevant than the
probabilities presented in Collins: in Collins, at least, the expert testimony was grounded
in the facts of the case.
child protective services, and law enforcement, and the determination of whether an
allegation was false was evidently made in that context. (See ACT 37.)7
Specifically, the Canadian study Urquiza referred to as the “best” of the studies
itself makes clear that “in this study the finding of a false allegation is a clinical judgment
made by the investigating child welfare worker.” (Trocme & Bala (2005), at p. 1343.)
And it does not state what standard of proof is applied in making the finding.8
In our system of justice, “‘the jury’ is the lie detector.’ [Citation.]” (United States
v. Scheffer (1998) 523 U.S. 303, 312-313) — not law enforcement or child protective
services. Whether, or at what rate, allegations in other cases are determined to be false by
medical, child services, or law enforcement personnel — by an unknown standard of
proof — simply has no legitimate bearing on whether, in the context of a criminal
proceeding, an allegation against a particular defendant can be proven true beyond a
reasonable doubt. Urquiza’s statistics thus lacked the foundation necessary to make them
relevant. (Collins, supra, 68 Cal.2d at pp. 327-329.)
3.
Witnesses may not opine on the credibility of other witnesses.
7
One study cited by the prosecutor (Goodwin et al. (1979)) involved
“[r]eferrals to a child abuse treatment and evaluation program. A small percent of cases
had a history of false allegations.” (ACT 37.) Of course, an allegation may be false even
if the accuser has no history of making false allegations.
8
The Canadian study describes its methodology as follows: “On the basis of
the balance of evidence gathered during the investigation, the results of investigations
were classified as substantiated, suspected, or unsubstantiated. In the unsubstantiated
category, a further distinction was made by the investigating worker between
unsubstantiated reports that were considered to have been made in good faith and
unsubstantiated cases that were considered by the investigating child protection worker to
have been intentionally false (i.e., that were made maliciously).” (Trocme & Bala (2005),
at p. 1337.)
Dr. Urquiza’s testimony about the rate of false allegations contravened another
well settled principle: witnesses, particularly experts, may not opine on the credibility of
other witnesses. (See People v. Sergill (1982) 138 Cal.App.3d 34, 39 [expert testimony
about veracity of those who report crimes to the police is not admissible]; see also, e.g.,
United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1221 [it is error to permit a
witness to testify that another witness’s extra-judicial statements were truthful]; United
States v. Sullivan (1st Cir. 1996) 85 F.3d 743, 750 [“‘It is not the place of one witness to
draw conclusions about, or cast aspersions upon another witness’ veracity.’ [Citation.]”];
United States v. Sanchez-Lima (9th Cir. 1998) 161 F.3d 545, 548, [testimony regarding a
witness’ credibility is prohibited unless it is admissible as character evidence]; United
States v. Binder (9th Cir. 1985) 769 F.2d 595, 602 [reversing; “The effect of the expert
witnesses’ testimony was to bolster the children’s story and to usurp the jury’s factfinding function.”], overruled in part on other grounds in United States v. Morales (1997)
108 F.3d 1031, 1035.)9
While Dr. Urquiza did not directly opine on the credibility of the minor witnesses
in this case, his testimony essentially informed jurors that there was a 94 percent chance
or better that the prosecution’s witnesses were telling the truth. (See Myers, supra, 382
N.W.2d at p. 93 [rejecting state’s argument that testimony was merely offered to aid jury
in understanding truthfulness of children, in general, who claim to have been sexually
9
California is among those jurisdictions that do not hold that questioning a
witness about whether another witness is lying is error in every case; rather, courts must
“carefully scrutinize ‘were they lying questions’ in context.” (People v. Hawthorne
(2009) 46 Cal.4th 67, 98.)
abused].) As such, it was inadmissible.
4.
Courts across the country have condemned the type of statistical
testimony presented here.
Courts across the country have condemned the same type of statistical testimony
presented here. In United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, 329-330, the
Court of Appeals for the Armed Forces found that the trial court erred in admitting
evidence regarding the percentage of child sex abuse allegations that are false. The expert
in Brooks had testified that false allegations occurred in two to five percent of cases, and
that false allegations occur most frequently in cases involving divorce. (Id. at p. 329.) In
Brooks, which did not involve divorce, the court found that the testimony “suggested that
there was better than a ninety-eight percent probability that the victim was telling the
truth.” (Ibid.; see United States v. Mullins (C.A.A.F. 2010) 69 M.J. 113, 116-117.)
In Wilson v. State (Ct. App. Tex. 2002) 90 S.W.3d 391, the court held that it was
error to allow an expert’s testimony that two to eight percent of reported child sex abuse
cases involved false allegations, with the majority of those false allegations involving
child custody disputes. (Id. at p. 393.) The court explained that this testimony “did not
aid, but supplanted, the jury in its decision on whether the child complainant’s testimony
was credible.” (Ibid.)
In Myers, supra, 382 N.W.2d 91, the court found an abuse of discretion in the
admission of testimony that it is “exceedingly rare” for children to lie about sexual abuse.
(Id. at pp. 92-93.) The court rejected the state’s argument that the testimony “‘was
offered merely as an aid to the jury in understanding the issue of the truthfulness of
children, in general, who claim to have been sexually abused.’” (Id. at p. 93.) “When
viewed in light of the factual issues,” the court concluded, “this contention is unrealistic.
The credibility of the eight-year-old child was a fighting issue between the parties. . . .
The prosecutor’s obvious purpose in offering this expert testimony was to bolster the
complainant’s credibility.” (Ibid.) The court held: “We believe the effect of the opinion
testimony was to improperly suggest the complainant was telling the truth and,
consequently, the defendant was guilty. . . . [T]he opinion testimony crossed that ‘fine but
essential’ line between an ‘opinion which would be truly helpful to the jury and that
which merely conveys a conclusion concerning defendant’s legal guilt.’” (Id. at pp. 9798.)
In Powell v. State (Del. 1987) 527 A.2d 276, the Supreme Court of Delaware
reversed the defendant’s conviction for rape of his stepdaughter because the trial court
had erroneously admitted an expert’s testimony that 99% of the alleged victims involved
in her sexual abuse treatment programs were telling the truth. (Id. at pp. 278-280.) The
admission of this testimony, the court held, “deprived Powell of his right to have his fate
determined by a jury making the credibility determinations, so clearly crucial in these
cases, without guidance from an expert, in stark mathematical terms, bolstering the
credibility of the complainant and thereby impugning his credibility.” (Id. at pp. 279280.)
In State v. Parkinson, the Court of Appeals of Iowa held that the trial court
correctly excluded testimony about national research estimating the range of false
allegations to be between five and thirty percent of all sex abuse allegations. (State v.
Parkinson (Ct. App. Iowa 1996) 909 P.2d 647, 654.) The court held that the evidence was
properly excluded because there was no evidence of the methodology used in the studies
from which an indicia of reliability could be drawn. (Ibid.)
And in Snowden v. Singletary, supra, 135 F.3d 732, the court reversed an order
denying a habeas corpus petition because, it held, defendant’s due process rights were
violated by expert testimony that 99.5% of children tell the truth about sexual abuse, and
that the expert had not personally encountered any instances where a child had invented a
lie about sexual abuse. (Id. at pp. 737-738.) The court found that this testimony
constituted a fundamental unfairness and violated the defendant’s right to due process of
law. (Id. at p. 739.)
Here, as in the cases above, Urquiza’s statistics were inadmissible. They unfairly
bolstered the credibility of the prosecution’s witnesses and risked depriving Mr.
XXXXXX not only of his right to have the jury make credibility determinations, but also
of his fundamental right to a jury determination of guilt or innocence. These numbers
invited the jury to conclude that there was a better than 94% chance that Mr. XXXXXX
was guilty, without regard to any evidence in this particular case.
5.
The trial court abused its discretion in admitting Dr. Urquiza’s
statistical testimony.
The abuse of discretion standard requires reversal when an evidentiary ruling is
contrary to law. (See Argument I.B., above.) For all the reasons set forth above, Dr.
Urquiza’s testimony about the rate at which allegations of child sexual abuse were false
was irrelevant, lacking in foundation, and highly misleading. And it violated the principle
that witnesses, particularly experts, are not to opine on the credibility of other witnesses.
Its admission was thus contrary to law, and an abuse of discretion.
Even if the evidence had any legitimate probative value — and it did not — its
probative value was substantially outweighed by the danger of unfair prejudice, of
confusing the issues, and of misleading the jury. (See Argument II.B.2, & 4., above;
Evid. Code § 352.)
6.
The admission of Dr. Urquiza’s testimony about the rate of false
allegation violated Mr. XXXXXX’s federal and state constitutional rights.
The trial court’s erroneous ruling admitting the evidence violated Mr. XXXXXX’s
right to trial by jury, to a fair trial, to the presumption of innocence, to conviction only
upon proof beyond a reasonable doubt, to due process of law, and to present a defense.
(See Partida, supra, 37 Cal.4th at pp. 435-439 [defendant may argue that objected-to
state law error had the effect of violating federal constitutional rights]; People v.
Gutierrez (2009) 45 Cal.4th 789, 809; see also People v. Boyer (2006) 38 Cal.4th 412,
441 & fn. 17; People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman
(2003) 31 Cal.4th 93, 117; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15 &
16.)
A criminal defendant is entitled to be tried on the relevant evidence against him,
not on statistics and probabilities that bear no relation to the particular acts he is accused
of. (U.S. Const., 14th Amend.; Collins, supra, 68 Cal.2d at p. 320 [statistical testimony
“distorted the jury’s traditional role of determining guilt or innocence according to longsettled rules”]; Jammal, supra, 926 F.2d at p. 920; Snowden, supra, 135 F.3d at pp. 737-
739; Lisenba, supra, 314 U.S. at pp. 235-237; see Cal. Const., art. I, §§ 15 & 16.)
Urquiza’s testimony violated Mr. XXXXXX’s due process rights because it was entirely
irrelevant and lent itself to no permissible inferences. When there are no permissible
inferences to be drawn from the evidence, and it is of “‘such quality as necessarily
prevents a fair trial,’” due process is violated. (See Jammal, supra, 926 F.2d at p. 920
[citation omitted].) Such evidence violates due process when, as here, it “‘is material in
the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden, supra,
135 F.3d at p. 737.)
Urquiza’s statistics violated Mr. XXXXXX’s right to trial by jury and his due
process right to have the jury function as the sole judge of credibility and guilt or
innocence. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Dillon v. United
States (2010) 560 U.S. 817, 828 [referring to the “Sixth Amendment right to have
essential facts found by a jury beyond a reasonable doubt”]; Snowden, supra, 135 F.3d at
pp. 737-739; Brooks, supra, 64 M.J. at p. 330 [defendant had substantial right to have
factfinder decide ultimate issue without viewing alleged victim’s credibility through the
filter of expert testimony]; Powell, supra, 527 A.2d at pp. 279-280 [expert’s percentage
testimony deprived defendant of his right to have jury make credibility determinations];
see United States ex rel. Toth v. Quarles (1955) 350 U.S. 11, 16-18; Scheffer, supra, 523
U.S. at p. 313.)
Urquiza’s testimony also violated Mr. XXXXXX’s right to present a defense.
(U.S. Const., 6th & 14th Amends.; see Collins, supra, 68 Cal.2d at pp. 327, 331
[statistical testimony “foreclosed the possibility of an effective defense by an attorney
apparently unschooled in mathematical refinements, and placed the jurors and defense
counsel at a disadvantage in sifting relevant fact from inapplicable theory”]; Cal. Const.,
art. I, §§ 15 & 16.) Last, but far from least, Urquiza’s testimony undermined Mr.
XXXXXX’s right to the presumption of innocence and reduced the prosecution’s burden
of proof beyond a reasonable doubt. His statistics informed jurors that, even before any
evidence relevant to this particular case was considered, there was a well above 90%
chance Mr. XXXXXX was guilty. (See Taylor v. Kentucky (1978) 436 U.S. 478, 487488, 490 [jury was improperly invited to consider petitioner’s status as a defendant and
permitted to draw inferences of guilt from fact of arrest and indictment]; In re Winship
(1970) 397 U.S. 358, 363; Estelle v. Williams (1976) 425 U.S. 501, 503; U.S. Const.,
14th Amend.; Cal. Const., art. I, § 15.) In effect, Urquiza’s statistics converted the fact
that an accusation had been made to a probability of guilt; from Urquiza’s testimony,
jurors could conclude, without considering any evidence specific to this case, that there
was a 92 to 99 percent chance that Mr. XXXXXX was guilty. (See generally Laurence H.
Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev.
1329, 1360-1361, 1368-1372 (1971) [statistical evidence undermines the presumption of
innocence].)
C.
Reversal is required.
This was a close case, as evidenced by the jury deadlock — nine to three in favor
of acquittal — at Mr. XXXXXX’s first trial. (See Argument I.E.) The case boiled down
to a credibility contest between Mr. XXXXXX and the witnesses who testified on his
behalf, on the one hand, and the accusers, on the other hand. (See Argument I.E.)
This error went to the heart of that credibility contest, bolstering the prosecution
witnesses by informing jurors that it is rare for children to make false reports of sexual
abuse. (3RT 506-507.) The error gave the prosecution a leg up — inviting jurors to
conclude that even before any evidence particular to this case was considered, there was a
94% chance or better that Mr. XXXXXX was guilty.
The prosecution cannot prove beyond a reasonable doubt that this violation of Mr.
XXXXXX’s constitutional rights did not contribute to the verdict. (Chapman v.
California (1967) 386 U.S. 18, 24-26; Snowden, supra, 135 F.3d at pp. 738-739 [habeas
corpus granted where prosecution expert testified that 99.5% of children alleging sexual
abuse are telling the truth; jury’s opinion on truthfulness of alleged victims went to the
heart of the case].)
Indeed, under any standard, this error was not harmless. Given the jury deadlock
in the first trial, and the jury’s struggle with the case at the second trial, it is clear that
guilt was by no means a foregone conclusion. (See Argument I.E.) There is a reasonable
probability that, had the trial court not permitted Dr. Urquiza to testify that, essentially,
there was a 94% chance or better that the witnesses were telling the truth, the result
would have been more favorable to Mr. XXXXXX. (Watson, supra, 46 Cal.2d at pp. 834837; Wilkins, supra, 56 Cal.4th at p. 351; Soojian, supra, 190 Cal.App.4th at pp. 520521.)
Mr. XXXXXX respectfully asks this Court to reverse his convictions.