In late September, the Massachusetts Supreme Judicial Court was able to turn a tragic event - the apparent rape and indecent assault and battery of a child - into a mechanism for change: a reevaluation of the validity of the fresh complaint doctrine.
Writing for the court in a landmark decision on Sept. 29, Justice Judith A. Cowin, in Commonwealth v. King, recognized the shortcomings and biases inherent in the antiquated evidentiary rule, and articulated the need to revise the fresh complaint doctrine, its scope and continued necessity.
“Imagine a situation where a state Supreme Court is figuring out how to change a law everyone is dissatisfied with,” said Robert O. Berger III, King’s criminal defense attorney. “The concept of ‘hue and cry’ as the only way to verify whether a sexual assault complaint is real is a bankrupt idea.”
The fresh complaint rule dates back to English common law, which called into question the credibility of a victim of violent crime unless he or she had told someone about the incident right away. Jurors continue to rely on the misconception that a sexual assault victim who did not promptly complain was fabricating the accusation. However, statements that victims make to third parties about what happened to them are generally considered hearsay and are not admissible as evidence in court proceedings.
To skirt this conflict, Massachusetts’ fresh complaint doctrine admitted into evidence a sexual assault victim’s out of court complaint when seasonably made. The purpose of the doctrine is to corroborate the victim’s testimony, which may be susceptible to disbelief where the victim has failed to file a prompt complaint.
The rule does not mean that only rape victims who make a fresh complaint are credible; it simply allows rape victims who do complain promptly to eliminate any unwarranted skepticism from lack of evidence of a prompt complaint.
However, as the SJC pointed out, a requirement of “promptness” or “freshness” may, in fact, exacerbate the very misunderstandings the fresh complaint rule aims to counteract - that those victims who report “freshly” are inherently more credible than those who report at a later time - and contradicts the present understanding that victims often do not promptly report a sexual assault for a variety of reasons that have nothing to do with the validity of the claim of assault.
As the court noted, “at a minimum, the promptness requirement places the imprimatur of the court on the misimpression that most ‘real’ victims raise an immediate ‘hue and cry.’ At worst, the rule rewards perpetrators who are especially brutal or threatening during and after an assault, and thereby successfully procure their victims’ prolonged silence.”
Juries tend toward considerable and perhaps inordinate skepticism in rape cases and damaging stereotypes persist, said the court. Some jurors may continue to believe incorrectly that “real” victims will promptly disclose a sexual attack. Some jurors may continue to harbor prejudicial misperceptions about the nature of rape, rape allegations and those who make rape allegations. Victims may delay complaining about sexual assaults but then face claims of fabrication; the reasons for the behavior of victims of sexual assault are still widely misunderstood.
Based on “an overwhelming body of current empirical studies, data and other information establish[ing] that it is not inherently ‘natural’ for the victim to confide in someone or to disclose, immediately following commission of the offense, that he or she was sexually assaulted,” the court concluded that the fresh complaint doctrine required modification and announced in its place the “first complaint” rule.
Piling on of corroborating witnesses eliminated
According to the SJC, the ostensible “delay” in disclosing a sexual assault is not a reason for excluding evidence of the initial complaint; the timing of a complaint is simply one factor the jury may consider in weighing the complainant’s testimony. Accordingly, the evidence will no longer be referred to as “fresh complaint” evidence, as “freshness” has no bearing on its admission. Rather, consistent with the court’s focus on the evidence pertaining to the facts and circumstances surrounding the complainant’s initial report of the alleged crime, such evidence will henceforth be referred to as “first complaint” evidence.
In addition, in the future, Massachusetts courts will no longer permit in evidence testimony from multiple complaint witnesses, limiting the testimony to that of one witness - the first person told of the assault.
“The testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant’s credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime,” wrote the court. “Permitting a single first complaint witness to testify will accomplish the primary goal of the doctrine, which is to refute any false inference that silence is evidence of a lack of credibility on the part of rape complainants.”
Where feasible, that single complaint witness will be the person who was first told of the assault. That witness may testify to the details of the alleged victim’s first complaint of sexual assault and the circumstances surrounding that first complaint as part of the prosecution’s case-in-chief.
“It is the alleged victim’s first complaint, the point at which the accusation first surfaced, that is the most pertinent to the jury’s understanding of what motivated the victim to come forward and is the most useful in assessing the victim’s credibility (including assessing any specific defense theories attacking that credibility),” wrote the court.
Law enforcement officials, as well as investigatory, medical or social work professionals, may testify to the complaint only where they are the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report. These witnesses will still be able to testify as to other relevant issues in the case.
According to the court, a judge may permit the testimony of a complaint witness other than, and in lieu of, the very first complaint witness. For example, where the first person told of the alleged assault is unavailable, incompetent or too young to testify meaningfully, the judge may exercise discretion in allowing one other complaint witness to testify. In such circumstances, the prosecution must justify the substitution before trial in a motion in limine.
As with the fresh complaint doctrine, the court continued to permit the first complaint witness to testify to the details of the complaint itself - the complainant’s statements of the facts of the assault.
According to the court, this new doctrine will not prejudice defendants: it does not allow for the “piling on” of witnesses. Furthermore, the defendant is free to cross-examine both the first complaint witness and the complainant about the details of the complaint and draw to the jury’s attention any discrepancies. And judges retain their discretion to curtail direct or cross-examination to avoid any undue prejudice.
Details of complaint are admissible
In contrast to the prior rule, the complainant may testify to the details of the first complaint as well as why the complaint was made at that particular time. “This information is particularly relevant against the backdrop of frequent defense claims that delays in reporting sexual assault suggest fabrication, information from the complainant (often unknown to the first complaint witness) explaining the timing of the complaint, her or his motivation for disclosing the assault to the particular person told and in the particular circumstances, and the manner in which the complainant made the disclosure, may be essential to the jury’s understanding and appreciation of the first complaint testimony” said the court.
In addition, under the new rule, a first complaint witness may testify to his or her observations of the complainant during the complaint; the events or conversations that culminated in the complaint; the timing of the complaint; and other relevant conditions that might help a jury assess the veracity of the complainant’s allegations or assess the specific defense theories as to why the complainant is making a false allegation.
“The goal of this new first complaint doctrine is to give the jury as complete a picture as possible of how the accusation of sexual assault first arose. That complete picture will allow them to make a fairer and more accurate assessment of the validity of that accusation, based on specific information about the people involved rather than on outdated stereotypes and generalities,” said the court.
Consent v. identity
The court cautioned that first complaint testimony will beconsidered presumptively relevant to a complainant’s credibility in most sexualassault cases where the fact of the assault or the issue of consent is contested.“However, where neither the occurrence of a sexual assault nor the complainant’sconsent is at issue, the evidence will serve no corroborative purpose and will notbe admissible under the first complaint doctrine. For example, where the sole issueis the identity of the perpetrator, first complaint testimony will not be relevantor permissible under the doctrine.”
Finally, jury instructions (see sidebar) will be modified to reflect these changes to the doctrine. Some practitioners have commented that this instruction is an improvement over the prior form, which was internally inconsistent.
As is the current practice, the new instructions should be given to the jury contemporaneously with the first complaint testimony, and again during the final instructions.
William J. Meade, Legal Counsel to the District Attorneys, said he is very happy with the decision. “They did a couple things I was especially pleased with. They wrote a new jury instruction; that will be of great assistance to the bench and bar. And they anticipated the problem of what to do when your first complaint witness isn’t available or is too young to testify. They built into the opinion a mechanism for how the judge should address that situation.”
“The principal evil the court was concerned about was the repetition and amplification of more than one person talking about such a serious topic. I think that concerned every one of the justices,” said Berger, King’s attorney.
Lisa J. Steele, the attorney who wrote the amicus brief for the National Association of Criminal Defense Lawyers, agrees. “The prior rule had the problem of allowing piling on of witnesses. You could have a shaky victim witness, then her best friend testifies and is credible, and then the police officer is a credible witness, and then the ER nurse is credible. Even though the judge tells the jury not to take this substantively, they are hearing the story five times and it will have some effect on how the jury interprets it.”
However, Steele pointed out, the first complaint witness’ testimony still retains the usual problems inherent in any recollection witness’ testimony: perception, memory and after-acquired information. “The court is charting a brand new path and we will have to see what the experience is with it,” said Steele. “It is certainly an improvement over the prior rule,” she added.
Jane Larmon White, Committee for Public Counsel Services, found the ruling “salutary in significant ways. The King decision did away with numerous cases in which witnesses were allowed to repeat ad infinitum a complainant’s out of court statement about the assault. The sheer repetition couldn’t be said to be probative of anything. Now there shall be a first complaint that is admissible and there aren’t to be further witnesses. That limits the admissibility of what is essentially prior consistent testimony.”
According to White, “Appellate courts already recognized that piling on was a bad thing. This makes it explicit and removes the discretion of judges who disapproved but didn’t prohibit multiple witnesses. This is more explicit and there won’t be the running room there was before.”
“It also does away with disputes about how fresh ‘fresh’ has to be. I suppose most people would consider that a boon to the prosecution,” added White.
Plymouth County District Attorney Timothy J. Cruz agreed with White. “I think it’s a good step to get rid of the promptness requirement; a real success for victims or those who have been abused. In the past, in certain instances, the prosecutor may want fresh complaint evidence admitted, but if it was not seasonably prompt, they were prohibited from using it. Now, with promptness requirement being gone and the first person can talk about facts, I think that’s great. Let the story get to the jury and let them make the determination as to credibility, how it fits into the big picture.”
Cruz was pragmatic about losing the option of calling in additional fresh complaint witnesses if necessary to round out the victim’s story. “There will be cases where you’d rather put on the second first complaint witness because she would be a better witness than the first. It is something we’ll have to deal with and, as always, we will,” said Cruz.
“It will be the luck of the draw who the first complaint witness is,” said Steele. She added that prosecutors will likely make changes to guide officers’ questioning and what information they need to get on their initial interviews where it’s clear that a police officer taking a 911 call will be the first complaint witness.
Berger speculated that both CPCS and the district attorneys will undergo training programs about how to handle these changes in the law. Operationally, he’s not sure. He said it will be hard to know whether the commonwealth can use some of its experts or the effect on SAIN interview evidence.
Attorney Wendy J. Murphy, founder of the Victim Advocacy and Research Group, believes the rule change “will neither help nor hurt either side, but will serve an important educational purpose; By allowing the first complaint to come in and opening the door to the substantive information - the jury will hear lots of stuff about behavior in the aftermath of sexual assault that might explain how and when and why the victim reported the way she did. That’s the probably the best news of all.
“The court has said that ‘there are problems in the system; we will now allow first complaint evidence to be reported and then have an open discussion about the timing.’ That’s a really good thing. If the jury doesn’t believe the victim, then maybe the prosecution will have to put on an expert witness to articulate about why she behaved in a certain way. The jury can then apply common sense and less cultural prejudice to more thoroughly assess credibility,” said Murphy.
Murphy speculated that defense attorneys are going to have to add to their cross-examination repertoire issues related to timing of victims’ reports. Defense attorneys will have to demonstrate why a quick or delayed report is not credible. Victims will have a chance to explain their circumstances, such as torture or intimidation. “Explanatory facts are now fair game, so the reason for reporting timing can be more fairly addressed by the jury when deciding credibility,” said Murphy.
“But now that the question of how the decision was made to report when the victim did is now a fair question to ask at trial, there will be a strategic shift - both sides will have to address more directly a question that historically they haven’t had to spend much time on,” she concluded.