In March of this year, in a blow to common sense and an ode to splitting hairs, the Florida Supreme Court issued an opinion in the case of Pantoja v. State, (Florida Supreme Court No. SC08-1879 March 3, 2011). In doing so the Court has really muddied in the waters on when a witness’ prior false accusation is admissible.

Prior to this opinion, the Second District Court of Appeals in Jagger v. State, 536 So.2d 321 (Fla.2nd DCA 1988) held that evidence that the alleged victim had previously made an accusation of sexual abuse, only to later recant, was admissible to show an, “inclin[ation] to lie about sexual incidents and charge people with those acts without justification.” Id. at 327. This seemed like a commonsensical and simple application of chapter 90.608(2) of the Florida Statutes.

In rejecting the application of Jaggers to the facts of Pantoja, the Court found persuasive that in Jaggers the victim had accused and recanted an allegation against the defendant, while in Pantoja the accusation and recantation was against a different family member and the sexual acts were different. Really? That’s the issue? That is what stops this evidence from showing bias or “[a]n inclination, a propensity, a predisposition” to make false accusations? Pantoja at 14.

I guess I should take some comfort in the rational and logical dissent penned by Justice Canady and joined by Justice Quince – “I find the majority’s attempt to distinguish Jaggers v. State, 536 So. 2d 321 (Fla. 2d DCA 1988), unpersuasive. The First District correctly recognized that the decision now on review was in conflict with Jaggers. The Jaggers court focused on the relevance of the witness‟s “inclin[ation] to lie about sexual incidents and charge people with those acts without justification.” Id. at 327. The majority suggests that—unlike the prior accusation at issue here—the prior false accusation at issue in Jaggers was made against the defendant. This is simply incorrect. See id. at 326-27. Pantoja‟s conviction should be set aside, and he should be afforded a new trial in which he is permitted to introduce the proper impeachment evidence that was excluded.” 15

This opinion serves as yet another reminder of Judge Ramirez’ wise words in his recent dissent in Torres v. State (Fla. 3Rd DCA No.3D09-2433 January 19,2011), “If we, as a society, decide that sex offenders are not entitled to a fair trial, let’s come out and say so.”

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