UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Roland Chretien

v. Civil No. 07-cv-00044-JL

Opinion No. 2008 DNH 175

N.H. State Prison, Warden

 O R D E R

This case is before the court on Roland Chretien’s (already

granted) petition for a writ of habeas corpus from his sexual

assault conviction in state superior court. See 28 U.S.C. §

2254. On April 21, 2008, this court ruled that, on the record

before it, it was impossible to determine whether the superior

court’s refusal to allow Chretien to cross-examine the victim

regarding an allegedly false accusation of sexual assault against

another man had a substantial, injurious effect on the verdict. 

See Chretien v. New Hampshire State Prison, 2008 DNH 084, 25-26 

(“the April 21 order”). Specifically, Chretien alleged that the

victim had accused one Peter Hallinan of sexual assault under

circumstances similar to those under which Chretien has been

accused. Noting that the trial court had not only denied the

requested cross-examination regarding the allegedly false

accusation, but had refused to allow a deposition or to hold a

pretrial hearing (or similar proceeding) on the issue, see id. at

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1

 For the factual evidence presented at trial and the

procedural history up to the habeas petition, see the April 21

order, 2008 DNH 084, 3-9. 

2

23-26; see also State v. Howard, 121 N.H. 53, 58-59 (1981)

(requiring pretrial hearing prior to admitting evidence of

alleged victim’s prior sexual activity), this court utilized its

authority under Rule 8 of the Rules Governing Habeas Corpus and

scheduled an evidentiary hearing for July 8, 2008.

Although the hearing was scheduled at 10:00 a.m., the

parties requested leave that morning to work together on a

stipulated statement of facts. In order to spare the victim the

embarrassment and trauma associated with testifying to

potentially intimate matters in open court, the court continued

the hearing throughout the day to enable the parties to craft the

stipulation while the Warden’s counsel questioned the victim

privately. 

During the afternoon, the parties submitted to the court a

stipulation which, read in the context of all the evidence

heretofore presented,1 established that:

(a) contrary to what was represented to the trial

court, the alleged sexual encounter with Peter Hallinan

had in fact taken place;

(b) the encounter was consensual;

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2

 Prior to the incident underlying the charges against

Chretien, the victim had briefly met him at a restaurant in

Massachusetts. Her husband--whose friend had purchased a

motorcycle at Chretien’s store--had introduced them. 

3

 Per the stipulation presented at the July 8 hearing, the

victim stated that “she told her son that Peter Hallinan had

choked her because she did not want her son to think she was a

slut.” Similarly, at Chretien’s trial, the victim testified that

he “grabbed me, well, just around my neck and he pushed me down

to my knees,” and that she “felt that he was choking me.” 

3

(c) the Hallinan encounter involved precisely the

same type of sexual activity of which Chretien was

accused (fellatio); 

(d) the Hallinan encounter, likewise, involved sex

with a man previously unknown to the victim;2

(e) the Hallinan encounter, likewise, involved

sexual activity in a semi-public setting (an out-ofthe-way area of a commercial establishment); 

(f) immediately after the Hallinan encounter, the

victim had falsely reported to her son, Tim Hoyt, and

his roommate, William Kirsch (with whom she had been

engaged in a sexual relationship), that Hallinan had

sexually assaulted her;

(g) the victim told Hoyt that Hallinan had choked

her during the assault (just as she had accused

Chretien of doing);3

(h) the sources of the early morning phone calls

to Hallinan--implicitly accusing him of sexual assault,

and attempting to verify the victim’s false accusation

that Hallinan had “choked her” to force her to perform

fellatio--were Hoyt and Kirsch. Later in the day

Hallinan called back and spoke to Kirsch, who gave him

the impression that the victim has “changed her story”

and there would be no charges pressed;

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(i) the Hallinan encounter occurred immediately

after Kirsch had declined the victim’s invitation to go

to a motel with her;

(j) earlier in the evening, the victim’s husband

had confronted Kirsch and the victim regarding their

sexual relationship, which they admitted; 

(k) the trial court’s finding that the victim had

denied that the Hallinan sexual encounter took place--

which at least partially formed the basis of its denial

of Chretien’s request to cross-examine her about the

false accusation, as well as his request for a new

trial--was based on false information. It is not clear

what the basis for this finding was; and

(l) when questioned on the morning of the July 8

hearing, the victim initially denied that the Hallinan

encounter had taken place, and that she had falsely

accused Hallinan of sexual assault. Upon further

questioning, however, the victim admitted that she had

falsely accused Hallinan of choking her, after

consensually performing fellatio on him, “because she

did not want her son to think she was a slut.” 

At the July 8 hearing, this court announced from the bench

that it planned to grant Chretien’s habeas petition, vacating his

conviction without prejudice to re-trying him, as well as the

factual grounds for that decision (the legal standards underlying

which were set forth in the April 21 order, see 2008 DNH 084, at

15-25). It also asked the Warden to offer any arguments it had

that the petition should not be granted despite the denial of

Chretien’s right to cross-examine the victim about her admittedly

false accusation against Hallinan at trial. The Warden offered

three such arguments: (1) that defense counsel at Chretien’s

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4

 The Warden also asked this court to “remand” the matter to

the superior court for a harmless error determination, which this

court rejected because this is a collateral habeas proceeding,

not an appeal. 

5

trial had not made a sufficient pretrial showing to justify the

requested cross-examination, (2) that a false accusation

subsequent--as opposed to prior--to the accusation leading to the

charge against a defendant is irrelevant as a matter of law, and

(3) harmless error.4

 The court rejected each of these arguments.

At the end of the hearing, the court expressed concern that

a written order memorializing its findings and ruling, and

specifically the victim’s admissions as listed above, might cause

her unnecessary embarrassment and trauma, and noted that if the

state declined to re-try Chretien, it would not be necessary for

the court to publicize those facts in a written order. The

Warden’s counsel agreed to consult with the necessary decision

makers in his office to determine whether Chretien would be

retried. Immediately following the hearing, and based on the

Warden’s counsel’s agreement, the court issued an order

consistent with that approach: 

The petition for a writ of habeas corpus is

GRANTED. A memorandum opinion will issue within

30 days from the date of this order, before which

the [Warden’s counsel] will notify the court of

the State’s intentions with respect to the

disposition of the criminal case. The judgment of

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conviction is VACATED without prejudice to a new

trial.

(“the July 8 order”) (Document No. 29). Some weeks after the

hearing and order, an appellate attorney from the Warden’s

counsel’s office inexplicably telephoned the clerk, asking when

he could expect this court’s order on the writ of habeas corpus. 

Perplexed, the clerk referred the appellate attorney to the

court’s July 8 order, requiring the Warden’s counsel to notify

the court of the State’s plans for the case before the court

would issue any written order.

On July 29, 2008, the clerk received a letter from the

Warden’s counsel, informing the court that the Warden was

considering an appeal, and that “the final decision on whether or

not to appeal this order cannot be made until after the district

court issues its memorandum opinion.” Further, in apparent

defiance of the court’s July 8 order--in which the Warden’s

counsel had acquiesced--the letter stated that “a final decision

as to whether or not to re-try the petitioner cannot be made

until after a decision had been made as to whether or not to

appeal the district court’s order.” (Document No. 30). 

Assuming that the Warden’s counsel’s conduct was based on a

misunderstanding, the court held a conference call with counsel

on August 1. During the call, the court reminded counsel that:

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5

 Having agreed to proceed on stipulated facts at the July 8

hearing, both the court and Chretien’s counsel were concerned

that the Warden might take a different view of certain facts

established at the hearing, upon which both parties and the court

7

(1) it had suspended its decision on issuing a written order out

of deference to the victim in order to avoid the anxiety and

possible embarrassment attendant to her admissions, the

stipulation, and the court’s factual findings, (2) he, the

Warden’s counsel, had agreed to that approach, and (3) the legal

basis for granting the writ of habeas corpus was fully set forth

in the April 21 order--a 26-page opinion partially granting and

partially denying the Warden’s motion for summary judgment. The

only additional developments, the court explained, were purely

factual: based on the parties’ stipulation, the court had

determined that the victim did, in fact, falsely accuse Hallinan

of sexual assault under circumstances similar to those resulting

in Chretien’s conviction, and that the superior court had been

incorrectly led to believe that the Hallinan encounter had never

occurred. Thus, in order to determine with certainty that the

Warden and counsel desired a full-blown exposition of these

factual findings, the parties agreed that the Warden’s counsel

would report back to the court about whether the appeal would be

restricted to legal rulings, or would also include the court’s

factual findings.5

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relied in proceeding on the basis of the stipulation alone, in

lieu of the testimony from witnesses who had appeared and were

ready to testify. 

8

On August 8, 2008, the Warden’s counsel wrote to the court

that the Warden was “considering an appeal . . . on legal

grounds,” and that “it is not anticipated that the appeal will be

based upon the Court’s factual findings,” but that “the exact

grounds for any appeal will not be determined until after the

Court issues its memorandum opinion and judgment is entered.” 

Fully exasperated, the court will now turn to the applicable law. 

ANALYSIS

In its April 21 order, the court limited the July 8 hearing

to resolving the following issues:

(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 [v. Coplan, 399 F.3d

18 (1st Cir. 2005)], 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.

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9

2008 DNH 084, at 26. As explained in that order, resolution of

these issues would not require any inquiry into the admissibility

of evidence of prior sexual conduct implicating the New Hampshire

rape shield law. See Michigan v. Lucas, 500 U.S. 145, 149

(1991); see also N.H. Rev. Stat. Ann. § 632-A:6; N.H. R. Evid.

412; Cf. Redmond v. Kingston, 240 F.3d 590, 592 (7th Cir. 2001)

(Wisconsin rape shield statue bars evidence of sexual conduct,

not false charges of sexual assault). That question was resolved

when this court rejected Chretien’s extrinsic-evidence-based

claims. See April 21 order, 2008 DNH 084, at 14. Rather, the

remaining issues related strictly to Chretien’s right to crossexamination under the Confrontation Clause of the Sixth

Amendment. 

Under New Hampshire Rule of Evidence 608(b), and the

applicable case law, the defendant in a sexual assault case may,

in the discretion of the court, generally cross-examine the

alleged victim about specific instances of conduct probative of

untruthfulness, i.e., a prior false accusation of sexual assault. 

See N.H. R. Evid. 608(b); White, 399 F.3d at 24. While the court

may exclude this evidence as unfairly prejudicial or out of other

concerns referenced in Rule 403, the more successful the

defendant is in establishing the falsity of the prior accusation,

and the more similar it is to the underlying charged offense, the

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less discretion the court has in choosing to exclude it. See

White, 399 F.3d at 25-27; Ellsworth v. Warden, 333 F.3d 1, 5 (1st

Cir. 2003) (en banc) (“strong evidence of a prior false

accusation,” at least if “the setting and type of alleged lie are

similar” to the charged offense, would be “very powerful”). As

the First Circuit has made clear:

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. 

White, 399 F.3d at 25. 

Here, there are no such difficulties; the victim has

acknowledged not only that she falsely accused Hallinan of sexual

assault--under circumstances similar to those she has alleged

against Chretien--but provided the court with her motive for

doing so--to avoid her son’s disdain. Her accusation against

Hallinan, which is not just demonstrably false, but admittedly

so, arguably “suggests a pattern, and a pattern suggests an

Case 1:07-cv-00044-JL Document 32 Filed 09/23/08 Page 10 of 16
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underlying motive,” i.e., to characterize a consensual sexual

encounter as assault to avoid the scorn of one’s family. Id. 

The Warden argues that, because Chretien made an

insufficient showing to the superior court that the victim had,

in fact, falsely accused Hallinan of sexual assault, the superior

court acted properly in not allowing Chretien to cross-examine

the victim about that accusation. This argument is based in part

on the Warden’s view that, unless a defendant shows that a

victim’s accusation of sexual assault was “demonstrably false,”

he has no constitutional right to ask about it on crossexamination. Though the New Hampshire Supreme Court appears to

have endorsed this view in State v. Miller, 155 N.H. 246, 250

(2007), it does not comport with the First Circuit’s holding in

White. There, while the court of appeals refused to “say that

New Hampshire’s requirement of demonstrable falsity is always and

everywhere infirm,” it held that “the application of New

Hampshire’s general rule to the peculiar facts of [a] case” may

nevertheless violate the Confrontation Clause. 399 F.3d at 26. 

Indeed, the White court ruled that such a violation had occurred

in that case where the accusations “were false to a reasonable

probability.” Id. at 27. 

That is a considerably lesser standard than demonstrable

falsity, and was readily met by the materials presented to the

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6

 The hearing, of course, would not have been a true

“Howard” hearing, as it could have been tailored to discern only

a false accusation, as opposed to sexual conduct. Even the

parties’ stipulation need not have addressed the details of the

victim’s sexual encounter with Hallinan (although it did); a

stipulation as to the truth or falsity of the accusation (which

could have been false as to either the conduct itself or its

consensual nature) would have sufficed.

12

superior court in this case, which included an affidavit from

Hallinan that he had engaged in a consensual sex act with the

victim, only to receive calls from her cell phone early the next

morning making, and later recanting, the accusation that he had

sexually assaulted her. And, like the false accusations in

White, the false accusation against Hallinan was “of a quite

similar character” to the allegations against Chretien, “with a

resulting plausible inference of a motive to deceive that could

infect the present testimony of the . . . vital prosecution

witness[]; and with a defendant who had virtually no other way to

defend himself.” Id. The Warden’s argument also ignores the

procedures available to the superior court to determine whether a

defendant should be allowed to cross-examine the victim about a

false accusation, including conducting a pretrial “Howard”-type

hearing6 to which the defendant may subpoena witnesses, or

allowing the defendant to take the victim’s deposition. Had

these or a similar procedure been employed, it is safe to say

that Chretien would have been able to demonstrate his right to

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13

cross-examine the victim about her accusation against Hallinan at

trial. 

In light of the evidence established at this court’s hearing

under Rule 8 of the Rules of Habeas Corpus (which was available

to the trial court through the procedures described supra),

considered along with all the evidence previously presented, the

superior court should have permitted Chretien to cross-examine

the victim on her prior false accusation. See id. at 26-27. Its

failure to do so amounted to an unreasonable application of 

clearly established Confrontation Clause doctrine. Id.

Moreover, the constitutional error that occurred was not

harmless, but had a “substantial and injurious effect or

influence in determining the [superior court’s] verdict.” Brecht

v. Abrahamson, 507 U.S. 619, 623 (1993); see also O’Neal v.

McAninch, 513 U.S. 432, 435 (1995) (even “the uncertain judge

should treat [a constitutional] error, not as if it were

harmless, but as if it affected the verdict”). This was a case

of sexual assault where Chretien raised a consent defense. As

there were no witnesses to the incident, and little physical

evidence to corroborate or disprove the victim’s version of

events, the prosecution’s case was not overwhelming. Her

credibility, therefore, was paramount.

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7

 For the court’s discussion of the relevance of false

accusations made subsequent to the underlying offense, but prior

to trial, see supra pages 14-15. 

14

The ability to ask a witness about

discrediting prior events--always assuming a

good faith basis for the question--is worth a

great deal. Imagine if [Chretien] had been

allowed to question the [victim] about [her]

prior[7] accusation[], establish [its]

similarity, and inquire into [a] supposed

recantation[]. The jury, hearing the

questions and listening to [the victim’s]

replies, might have gained a great deal even

if neither side sought or was permitted to go

further.

White, 399 F.3d at 25. To give the finder of fact a reason to

disbelieve the victim, Chretien sought to introduce testimony

that she had falsely accused another man of a sexual assault in

circumstances similar to those for which Chretien was convicted:

a (1) semi-public encounter (2) resulting in oral sex performed

by the victim (3) involving a male previously unknown to her,

followed by (4) a report of sexual assault to others including

her family (5) alleging that an assailant had forced her to

perform a sex act by choking her and (6) the alleged

perpetrator’s contention that the encounter was consensual.

The Warden argues that, because the victim falsely accused

Hallinan after--as opposed to before--she first made similar

allegations against Chretien, the Hallinan accusation had little,

if any, relevance to her credibility. Rule 608(b), however,

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15

allows cross-examination on “[s]pecific instances of the conduct

of a witness . . . concerning the witness’s character for

truthfulness or untruthfulness,” without placing any restrictions

based on when the specific instances occurred. Indeed, since the

rule recognizes that the purpose of such evidence is to determine

whether the witness is being truthful at trial, the only temporal

limitation would seem to be that instances too remote in time

from that testimony (as opposed to when the witness first

verbalized that account in some other setting) might be

inadmissible as insufficiently “probative of truthfulness or

untruthfulness.” Here, however, the victim’s false accusation

against Hallinan occurred just months before she testified

against Chretien at trial. The Warden has provided no authority

whatsoever--no case law, statute, or rule of evidence--in support

of the proposition that the false accusation against Hallinan was

irrelevant to the victim’s credibility merely because it happened

subsequent, and not prior, to her initial accusation against

Hallinan. The trial court’s refusal to allow Chretien to develop

this issue through cross-examination deprived him of his “basic

right to have the prosecutor’s case encounter and survive the

crucible of meaningful adversarial testing.” Crane v. Kentucky,

476 U.S. 683, 690-91 (1986).

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As already stated to the parties at the July 8 hearing,

Chretien’s petition for a writ of habeas corpus is granted

without prejudice to retrial. The Clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

 

Joseph N. Laplante

United States District Judge

Date: September 23, 2008

cc: Scott F. Gleason, Esq.

Thomas J. Gleason, Esq.

Brian Graf, Esq.

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