¶1dissenting:
¶2The 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.
¶3Defense 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.
¶4The 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 *504him. 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.