The Court, as I understand its opinion, reverses the court of appeals' judgment for five reasons: It was proper for the State to cross-examine the CPS worker about her lack of knowledge of an extraneous offense (1) because she was an expert witness, (1) and (2) to correct a false impression. (2) It was proper for the State to introduce the testimony of the victim of the extraneous offense (3) to rebut the defense theory of lack of opportunity (3) and (4) to rebut the defensive theory of frame-up, (4) and (5) the prejudicial effect of the victim's evidence did not substantially outweigh "the State['s] need to show that the touching actually occurred" (5) and "to counteract the small parade" of defense witnesses. (6)
I haven't much quarrel with the first holding, about testing the basis of the quasi-expert's knowledge. I may not agree with all the dicta in the footnotes.
I do not agree with the holdings about the testimony of S.S., the extraneous-offense victim. Evidence that a person could fondle a child's genitals that were under the water of a lake, where no one could see the touching, has little to do with its being possible to fondle a child in a bedroom where other people who were present could see the touching. Evidence that one person who did not report the extraneous offense did not seek financial gain by reporting, in no way disproves that the person who did report this offense had motivations of financial gain.
As for the need for the evidence, I wish to make two points. First, in the balancing test between probative value and prejudicial effect, the Court assigns probative value to the fact that the appellant is the kind of person who commits child abuse. (7) As I understand the law, this is the improper, prejudicial feature of the evidence, not its legitimate value to prove another fact. Second, if the scales are tipped to admissibility because the State has only the victim as a witness while the defendant had more witnesses to be rebutted, they'll be tipped most of the time. And if they can be tipped because there was "a hotly contested issue" whether "the offensive touching actually occurred," (8) they will tip in every case where the plea is Not Guilty.
I would not disturb the court of appeals' holding on the evidence from S.S., which would make it unnecessary to reach the issue of the CPS's worker's evidence. I respectfully dissent.
Delivered January 30, 2002.
1. 2. 3. 4. 5. 6. 7. Id. at 9 (referring to the State's great need to rebut evidence "that appellant is not the
type to abuse children," with what must be evidence that he is such a type because he did so
1.See ante, Part II at 3-8.
2.See id. at 8-9.
3.See ante, Part III at 11-12.
5.Id. at 13.
6.Id. at 14.
7. Id. at 9 (referring to the State's great need to rebut evidence "that appellant is not the type to abuse children," with what must be evidence that he is such a type because he did so before).
8.Id. at 13.